In The Moment

Audiobook Recommendation #3: "The Wisdom of Joseph Campbell"

2011-03-08T21:27:00.000-06:00

It's been awhile, but I started a series of posts about the best audiobooks I've found over the last few years. Number 3 is a hard to find audiobook of conversations between Joseph Campbell and Michael Toms of New Dimensions radio called The Wisdom of Joseph Campbell.

The four cd set reminds me of Joseph Campbell and the Power of Myth, the book that introduced millions (including me) to Campbell's work, but I actually like it much better than the Moyers series. While Moyers is one of my heroes and has had a great impact on my life, Moyers is a journalist/generalist while Toms is much more of an expert on mythology. Thus, while Moyers questions probe Campbell to describe his life's work in detail, Toms' questions propel Campbell into lively descriptions of the joys of growing old when you've found and followed your bliss.

At one point, Toms stops Campbell, asking him to go back and restate a point he's just made and Campbell can't, exclaiming that "that's so hard, you talk out of an excitement..." In other words, while Toms tries to get Campbell to slow down for Toms' audience, the great conversation between them has prompted Campbell to talk so excitedly that he goes beyond his prepared material and into a zone of spontaniety that's wonderful to witness. In fact, at one point, upon signing off, Campbell tells Toms that he "feels like he's talking to a brother" in what must have been one of the high compliments of Toms' life.

At another point, Toms reads Campbell a selection from Campbell's early work The Hero With a Thousand Faces. I forget the passage, but Campbell responds that when he wrote the selection he was writing out of what he had read at that time. He goes on to describe how moved he was by his own writing, thinking "I wrote that?," before going on to say that now that he listens to it in old age (Campbell is in his 70's or 80's when the conversations took place) he has now lived through what he described in this book and has witnessed it to be true. When Toms comments that his conversations with Campbell make him not fear growing old, Campbell responds with a quote "grow old with me, the best is yet to be." It's a nice message about myth, in other words, and a rare example of a conversation between two people with an in depth knowledge of mythology.

At one point, Campbell describes Christianity in a rare, but true, way. He says:

"One of the obsessions, I think, in Christianity is the Devil. When I turn from reading Oriental and tribal mythologies to any orthodox Christian work, suddenly the Devil is there. I think he's more important than God. He's the reason for all the wars against other people. He justifies the massacre of primitive tribes. They are all "Devil worshippers." Anyone who has an experience of the divine that's not of some particular clergy, is worshipping the Devil. And "Devil" is the word that's actually used for other people's gods."

At another point he responds to a call-in question about whether primitive people lacked a spiritual life. Campbell disagrees respectfully but strongly, describing that despite their tough lives, primitive peoples' belief systems were often more advanced than our own. In fact, he points out the depth of visions like the one described in Black Elk Speaks in which Black Elk not only had a vision that Harney Peak in South Dakota was the center/ still point of his Sioux tribe but that this vision continued and deepened as Black Elk saw a series of interlocking hoops across the world and went on to describe the center of the world as "everywhere." Campbell describes this as "a tribe that thought it was It is now in a multiple heteregeneous world."

Campbell describes this vision as "good stuff for today." I agree and highly recommend this audiobook or the abridged printed version called "An Open Life."

Joseph Campbell on Native Americans

2011-03-03T22:59:00.000-06:00

I'm reading The Hero's Journey: Joseph Campbell's Life and Work which features transcripts interviews he gave throughout his life. I read anything and everything by Campbell and will soon start listening to the audiobook of The Hero With a Thousand Faces. Just yesterday I finished, again, a great series of interviews Campbell did with Michael Toms of New Dimensions Radio entitled 'The Wisdom of Joseph Campbell." Excerpts of this audiobook are also available in Michael Toms' book An Open Life.

But today I ran across a great quote from Mr. Campbell in the Hero's Journey that rings true but which also represents a perspective I rarely hear but that he spoke in the early 80's. He said:

Today you read of our interest in clearing up apartheid in South Africa and we don't think about our own Native Americans, taking the mote out of our neighbor's eye with a beam in our own that isn't matched in the history of civilization. And those people, our own native people, are still living in a subcivilized condition that's been put upon them. I don't see any of our ambitious youth picket-lining to give Indians their due.

Stuttering: The King's Speech

2011-02-27T23:11:00.002-06:00

I caught a little bit of the Oscars with my daughter and loved the part where the old man who won Best Screenplay for The King’s Speech concluded his speech by saying “stutterers have a voice.” This hit home for me because stuttering runs in my family. When I was a kid, in first grade, I left the regular classroom twice a day, once to go to with the second graders for reading and once to go with the kids who needed help with their speech. I have two brothers and two of us stutter. I say “stutter” because it never really goes away, although it’s improved greatly over time and no one, not even my wife, knows when I stutter.

Here’s how it works: When I have time to think about starting a sentence with a certain sound I cannot say it and instead must trick myself into starting with a different word. For example, if I have to say the word “when” (‘w’ sounds are particularly troubling) I have a choice of either stuttering, “w, w, w, when… or changing the sound and beginning with, for example, “um, when …”

To those of you who’ve never stuttered this must sound crazy. In fact, reading over it and putting it down on the page makes me laugh at myself. How is it that I cannot simply say a simple sound? I truly don’t know, but know that this slight reminder of the chronic stutter I had as a child still remains. Even more puzzling is that simply talking about it will make even worse for a few weeks, until the memory that I am a slight stutterer fades back into my mind.

In some ways, having this slight stutter has its benefits. For example, it can act as an indicator of stress in my life as when it “acts up” or when I find myself almost stuttering (and having to think of different words) for sounds that used to flow smoothly, I’m reminded that my mind is overtaxed and falling back into old habits that I thought I’d overcome.

Another benefit is empathy. I work with a lot of alcoholics and addicts as well as a lot of people who can’t understand why they can’t simply walk away from the drug they’re addicted to. It reminds me of being a kid and stuttering over a word and then having someone try to help me by modeling the way my mouth should move to pronounce it, as if somehow I’d forgotten to just move my lips around the sound. I wanted to say, “Don’t you think if that were the problem that I’d have tried that by now?” or “Do you think I’m that stupid?”

But, like addiction, it’s very hard to reverse roles with the person who’s afflicted. Right after college I worked at a consulting company designing marketing materials for people whose main job was to speak to large groups of people. I worked behind the scenes, writing and editing some of the materials they used and occasionally speaking before them. When I struggled, the audience was not very forgiving because I was failing at a skill they took for granted and which likely came very naturally for them. When I fell silent for a minute and tried my trick of thinking of a different syllable to begin a sentence, they frequently finished my sentence for me, impatient with my lack of speed and command. I didn’t dare confess to being a secret stutterer to this group as this would have been viewed as a weakness rather than an affliction.

One day at this job, however, my boss corrected me emphatically. I told him, probably wanting to avoid having to avoid speaking in front of a group, that I “was a bad public speaker.” He was a very patient individual, an amazing speaker, but he also understood that the key to solving problems was knowing where to begin. He said, and I’ll never forget this, “Stop saying that you’re a bad speaker and start saying “I need to work on my speaking skills.” It sounded ridiculous at first, sort of like the person who told me, when I stuttered, to “just say it,” but I told him I’d give it a try. He pressed on, asking me if I would commit to presenting in front of a large group at an upcoming conference. Terrified, but having just agreed to try something new, I told him I would.

When the day arrived, I didn’t stun the audience with my command of language, but I did o.k. There were two reasons for this: (1) My boss set the stage for me by introducing me and convincing the audience to welcome me with a big round of applause which created a welcome environment, and (2) simply thinking of myself as needing to work on my speaking skills rather than simply being a “bad speaker” gave my brain permission to look for ways to solve the problem and opened up the possibility that I wasn’t simply bad but just needed to work on acquiring this skill. I found this simple trick, which I laughed at at first, to be amazing in practice.

Not long after that, as I presented a different boss with something I’d written, and commented that I lacked the speaking skills to deliver it she commented that “if you have the mind to create it, you can have the mind to present it. It’s the same process.” This was even more stunning to me because I’d always thought of myself as a writer rather than a speaker. Hearing that moving from creating something that worked on a page to something that worked on a stage, or at a podium, was “the same process” was also stunning to me. More importantly, it gave me permission to open a closed door and stop pretending that I was just “bad” at speaking in front of a group. Instead, her words gave me permission to work on a skill that I lacked rather than hiding behind this deficiency as if it could never change.

Shortly after that came law school. I was 29 years old and would know no one in my class. Since I was late to the law school game, I had the benefit of hindsight to know that I wanted to do something I enjoyed. I decided the path that sounded most intriguing was to be a trial lawyer. Rather than admitting that I was a bad public speaker or even that I needed to work on my public speaking skills, I decided to tell myself and anyone that would listen that I was going to be a trial lawyer, as if my public speaking skills came as naturally as those silver tongued orators and natural public speakers that graced Court TV at night.

I approached the President of ATLA my first week of law school and announced that I wanted to join. I expected her to hand me a sign up sheet or a brochure, but instead she dug in her locker and handed me a thick file. She was a 3L, looked stressed beyond belief, and she said, “Here you go, you’re the new president.”

When I got out of law school and did my first jury trial I was scared beyond belief. Pretending to be a trial lawyer may have worked to trick my own mind and a few classmates, but these stakes were high and real. I felt like the jig was up, like I might be discovered or my stutter return. But I also discovered something as puzzling as my stutter when I stood beside my client. When it was about him and not about me, I didn’t think about stuttering. Sure I was nervous, but stuttering didn’t enter my mind. If I “tripped” over a letter or a sound, I could get around that easily since once I got going I didn’t have time to think about old, bad habits that crept up only when I had time to worry about them. Since this was about his future and about winning against that prosecutor, neither stuttering nor my old belief that I was bad at speaking entered my mind.

When the judge called us back in chambers after the case went to the jury he said I did well with what I’d been given. When the jury hung, I felt like I pulled of a great trick. And I was hooked.

I used to feel guilty about stuttering, as if I made a bad choice or couldn’t overcome a simple problem on my own. Then once I attended a large family reunion and witnessed an uncle, whom I’d never met up to that point, stammer and stutter over his words, nervous to be speaking before the group and unable to sound out the same sounds that often tripped me up or made me start over. It was like looking in a mirror.

It also made me realize that the stutter I’d heard my father describe also had it’s roots on my mother’s side of the family, as it was her brother whose speech seemed so much like mine. It also offered proof that this problem was likely hereditary, that it was more like a disease to be treated than a weakness to be hidden or ashamed of.

Once in awhile I speak to a client and quietly tell them that I know their secret. I tell them that only I can spot it but that I see them doing exactly what I do, trick their own mind into avoiding an obvious stutter by choosing different words before their mind has time to trip them up. Not once has anyone ever argued with me over this and every time they’ve seemed amazed that I can spot what they so craftily conceal.

I go on to tell them not to feel ashamed, that it’s only noticeable to someone like me and that it “takes one to know one.”

It’s nice to see some attention paid to this issue, to know that more people will understand it or at least not be so quick to judge it or so patronizing in their stated cures for it. It’s nice to know that stutterers can learn to have a voice.

PTSD Tribes Needed

2011-02-01T23:18:00.000-06:00

I just finished Tribes by Seth Godin. Scott Greenfield once wrote a post or two referencing Godin and somehow the name stuck, prompting me to pick it up in the library. The book’s timing was perfect as I’m pondering how best to craft marketing strategy, how to be a better leader, and whether the best way to do this is to take Godin’s advice and become a heretic.
Godin describes a tribe as a group aligned around an idea, connected to a leader and to each other, going on to describe how creating a tribe is easier than ever, thanks to the internet and social media which make connecting simple and instantaneous. He goes on to describe tribe leaders as heretics who “must believe.. [who are] challenging the status quo... daring to be great... [who are] not just punching a clock [and] who must have confidence in [their] beliefs.”

According to Godin, size doesn’t matter, at least not at first. I described to my daughter, who wants to be an artist, Godin’s description of a successful artist building a career upon a few hundred true fans. He doesn’t pretend that a few hundred fans will make you rich or even pay your bills, but points out that a few hundred true fans will spread your message and attract enough fans to create a movement.

I saw an example of this kind of “movement” today in the Omaha World Herald and was surprised how quickly this once small group reached the headlines. The group is called “At Ease” and their aim is to help soldiers with PTSD reenter society. Here is how I came to know them:

Last June: I stop in Dick’s Sporting Goods and buy a kayak.
The “kid” (he’s about 22) and I get along well and he talks about how he, like me, likes to go to Zorinsky Lake in Omaha and how he’d like to start kayaking in local rivers if he could ever find the time. We talk about the College World Series, how he found tickets and went with his friends the day before. I tell him that I took my daughters to couple games, how they have great memories of Rosenblatt and how we couldn’t miss the last year there.

Last July: I am in court and see the “kid” who sold me the kayak pleading to a second offense DUI. I hear his lawyer tell the judge how he came home from Iraq with PTSD and hear the judge sentence him to probation, telling him he has to get down to the root of his problems or end up in jail.

The next day: I tell my wife how badly I feel for the kid, how hard it must be to be in Iraq one day and back in Omaha the next with people expecting you to settle right in, despite what you may have seen or been asked to do. She tells me about a program one of her friends’ husbands has started that aims to help soldiers coming home from Iraq with PTSD. When I google the name, “At Ease,” I have to dig for information, but eventually find a few web pages about how Scott Anderson uses space at a church in Bellevue, NE. I can’t let this “kid” go it alone (and don’t have any confidence that his own lawyer will go the extra mile for him) so I stop in at Dick’s and deliver the information, along with Scott’s phone number.

A couple months later: I am appointed to a case and my client describes coming home from Iraq and struggling with PTSD. I don’t know if he ever uses it, but I find the information about “At Ease” and tell him that he’s not alone, that someone locally has started a group for people like him who are, understandably, having trouble settling back into America after being sent to Iraq or Afghanistan.

Last week: I am walking through the courthouse and strike up a conversation with a guy who tells me about his service in the Marine Corps. We end up walking out along the same path and he goes on to tell me how lucky he is, how he doesn’t feel he deserves the veteran benefits he receives. I’m shocked later at his lack of a sense of entitlement as he tells me how his combat experience in Iraq left him with on-going PTSD. When I ask him if he’s ever heard of At Ease he pauses and says, “I couldn’t live without it.” I think to myself how great it is that people like him can join this tribe and hopefully get some relief from PTSD.

Today: I pick up the Omaha World Herald and read that former Nebraska Senator Bob Kerrey spoke out in support of At Ease:

Kerrey argued Monday that non-profit programs such as At Ease — a 16-month-old effort to provide PTSD treatment to Omaha-area veterans and their families — have the best chance to bring struggling service members back into civilian society.
“This is a situation where we have to solve it, we have to provide help,” Kerrey said of post-traumatic stress disorder before his speech. “It's working.”

Godin’s message is that if you lead well, you will attract the type of people who commit to your vision and spread the word, leading to something that both works and spreads.

Maybe what made me want to help people with PTSD was a sign I wrote about a few years ago, posted by soldiers in Iraq. It said “America isn’t at War. America is at the Mall.”

But maybe that kid you see at the mall was just in Iraq and is having trouble adjusting to the distance between these two worlds. Thankfully people like Scott Anderson, the founder of At Ease, (who took great pains to not take personal credit for its success) are stepping up to help them bridge this gap.

Can you help him spread the word or do whatever you can, even if it takes just a moment, to help someone coming home from wars we seem to have forgotten?

Law Review about The Wire

2011-01-23T20:58:00.000-06:00

I read a great law review article recently about The Wire, which is available here. I have only watched a few episodes of this highly-reviewed show, but even these few gave me new insights into a system that I work in every day from but typically only see from one angle. I don’t remember the specific scene or story that hit home with me, only that, after watching it, I felt as if I had more insight into the motivations of the other players in the system, as if I had, however slightly, “reversed roles” (a term associated with psychodrama) with police officers or prosecutors after watching and thinking about this rare, non-melodramatic portrayal of a complex system.

The article made me want to watch the entire series, calling it, “a riveting show: the greatest television series ever made.” While “riveting” shows with compelling drama are important to draw viewers in, what’s often missing from “cop shows,” at least in my view, is truth. I’m not complaining about a lack of nonfiction shows on t.v., only pointing out that, of the vast majority of “cop shows,” most feature some variation of the same old story which essentially places a black hat on the defendant to match the white one given to the pure-hearted prosecutor, or the evil-fighting cop. You know the story, the poor, toiling cop or the outgunned prosecutor, the one who fights for justice all alone, who would have gotten to the killer if it wasn’t for that meddling Constitution, as quoted by the slick defense attorney who clearly wants to put the guilty pedophile back into your kids’ school. It’s the same old story and it’s running in several slightly different versions across cable reruns as we speak.

Thus, the problem isn’t that there are too many fictional shows, only that the one-sidedness of this story, and the repetition of it create archetypes within viewer’s minds and thus create something potentially dangerous: people who stumble into the system for the first time (as jurors or observers, or people who question you at a party about “how do you defend someone you know is guilty?”) with preconceived beliefs, stories which feature defense attorneys as pro-crime, and systemic problems as simple, and solvable, if we’d simply stop that pesky Constitution from getting in the way of “the good guys” who work for the government.

But the system I see, and that these people typically pre-judge, is nothing like the one featured on t.v., (at least outside of The Wire and a few exceptions, like Raising the Bar) in this heavily cliched genre. Here’s one example: since Omaha’s Police have a very powerful union, their contract is correspondingly generous, giving them (the last time I checked) 4 hours of overtime for each court appearance. Thus, when I appear in traffic court in the morning I see less of a call for justice as I do a call for overtime.

These police officers aren’t necessarily greedy, they simply understand that the quickest way to make the most money, to maximize their payment under their contract with the least possible time commitment, is to make a lot of minor traffic arrests. Here’s how it might work: You’re an officer and you work the night shift, getting off in the early morning. If you appear in court, you have to appear in court at 9:00 a.m., but you get overtime pay for four hours for simply showing up. If you arrest someone for driving under suspension, it doesn’t take long and the case is usually wrapped up in under an hour.

In fact, I’ll never forget the look on my client’s face when he told me he had a good case since “even the officer said I should plead not guilty at arraignment and take it to trial.” I had to educate him about the system by explaining that the officer wasn’t giving that advice for his benefit but simply needed him to enforce his right to trial for the four hours of overtime he needed. His shining face in the second row proved it, and also meant the driving during suspension case against my client was a slam dunk, sending the officer home in about fifteen minutes. The City, however, paid him four hours of overtime for that appearance and, who could blame him, he laughed all the way to the bank almost every day.

Sadly, however, hardly anyone within the system was in a position to change it, to save this clear waste of tax dollars In fact, the prosecutor’s attempt to curtail this, which involved asking for money to hire another prosecutor whose job it would have been to secure early pleas and whose salary would be paid many times over in cost savings to the city was met with resistance, likely by the city councilman who knew how powerful the police union was and how they treated politicians who tried to cut into it. In short, the system I saw was complex, driven both by a desire for self-enrichment as well as its obvious goal of law enforcement.

But, while the latter goal was visible, and retold on television many times a night, the less visible goal, that involved the officer who knew how to work the system to maximize his income, was never seen on t.v. In fact, even when I try to tell it here, it likely doesn’t resonate, as it’s complex, not very dramatic and has difficulty competing with the “last honest cop” story that’s deeply imbedded on our minds, put there as we watched Southland, or Blue Bloods, (or fill in the blank) last night.

But the Wire is different. The law review article describes it as “in the business of telling America truths about itself that would be unbearable even if it were interested in hearing them.” While the fact that America isn’t even interested in these “unbearable” truths is depressing, the fact that the Wire ran so successfully is reason for hope. In fact, if the writers and producers of the Wire have figured out a way to tell these stories that captures the attention of us modern “t.v. babies,” who naturally like our drama to reinforce stereotypes rather than uncovering hidden truths, that creates the possibility of a happy ending to this sad story. As the article puts it, the Wire pulls this off as it “demonstrates that complexity and social context can make for a gripping tale.”

Maybe television can educate rather than inculcate, I thought. Then I read further and discover that The Wire educates us about something I see all the time but that is rarely discussed:

The Wire shows us something truly frightening about systemic dysfunction- that most of the harm done is neither dramatic nor venal. Sometimes individuals make heroic or repugnant choices, but the Wire insists on complicating not only the notion of villainy, but also the notion of heroism. It repeatedly presents individual choice as severely constrained, even dictated, by the logic of the system. Harm is done, day in and day out, by regular people trying to do and keep their jobs.

... the viewer is shown how how moral choice is shaped and constrained by systemic forces.... Those who attempt to live within an organizational structure but refuse to obey these rules... are nearly always punished, demoted, forced to resign, banished, murdered...

This reminds me of the Supreme Court case Garcetti v. Ceballos, in which a Deputy District Attorney did his job as a prosecutor and investigated the truth of an affidavit sworn out to secure a warrant. When he found inaccuracies, he recommended dismissing the case, but was met with resistance. When he complained further, he was denied promotion. Shortly after that he transferred, or banished, to the Palookaville Division. His “mistake” was in making an individual choice, rather than a systemic one. If he would have simply passed the potential harm onto the the defendant, ignored his oath and letting the officer’s lie lie (as the system likely demanded) he would have kept his job, perhaps even received a promotion.

While this truth that the Wire reveals, and the real example of it, are depressing, what’s exciting about the show is simply that it was made and that it was successful, running for years on HBO. Thus, while the Wire illustrates that “those who attempt to live within an organizational structure but refuse to obey these rules... are nearly always punished,” it somehow survived what was likely a similar organizational structure, lived to see the light of day, and told important stories that still circulate. In a world filled with the melodramatic stories of which Law and Order is composed, is people’s minds are still open to stories that go beyond the stereotypical, melodramatic stories that make up most of primetime.

Benjamin Wittes' Prefers "Civility" over Law, English Language

2011-01-16T22:25:00.000-06:00

Glenn Greenwald wrote this week about Benjamin Wittes of the Brookings Institution, quoting Wittes as calling the Obama Administration’s decision not to investigate the Bush Administration for approving torture “one of the more courageous things ... it has done.”

That’s a common sentiment, but Wittes goes further, claiming that “there has actually been a great deal of accountability for past detention policy -- the disclosure of internal memos, for example.”

Imagine making that argument in court, after your client was convicted of, oh, say obstructing justice for destroying the videotapes that documented Khalid Sheikh Mohammed being waterboarded 183 times in March 2003.

Or imagine that your client was convicted of simply waterboarding KSM one of these 183 times, as occurred during the Reagan Administration, when the DOJ prosecuted, and convicted, a Texas Sheriff, and his deputies (whose “only following orders” defense was unpersuasive to the jury) for waterboarding suspects.

Imagine beginning your sentencing argument, “Your Honor, a lenient sentence is in order here because ‘there has actually been a great deal of accountability’ because of ‘the disclosure of internal memos.’” The judge put your client in prison, a place which, to Wittes, “has only the most limited role in transitions of power in a democracy,” (More on this later) after laughing out loud.

But Wittes continues, with a straight face, stating that “What [Human Rights First] calls “accountability for torture” is, in my book, the criminalization of policy differences–nothing more or less.” Wow. Let that sink in for a second. He first disputes use of the word torture by HRF (ignoring Gen. Taguba’s conclusion that “"there is no longer any doubt that the current administration committed war crimes") and substitutes his own term of it, “policy differences.”

Imagine stating that in your sentencing argument, or your jury argument for that matter, “Ladies and Gentlemen of the jury, my client didn’t torture KSM when he simulated drowning 183 times in a month, he just had a “policy difference with U.S., International law, and the Geneva Conventions.”

What becomes crystal clear is that Wittes believes strongly in Equal Protection, as long as some people are “more equal than others.” If you’re a sheriff in Texas, the law applies, but if you’re one of the people, like Dick Cheney, who approved of “enhanced interrogation techniques” enforcing existing law is “criminaliz[ing] policy differences.”

The point here is not to attack Dick Cheney as the decision to not prosecute him, and others, would clearly have implicated people on both sides of the aisle and perhaps stretched to members of the Obama Administration, who have been praised for breaking campaign promises and continuing Bush Administration “detention” policies. In fact, even Michael Hayden, head of NSA during the Bush Administration, praised Obama’s similar policies, describing that “[y]ou've got state secrets, targeted killings, indefinite detention, renditions, the opposition to extending the right of habeas corpus to prisoners at Bagram.”

Instead, the point is that to people like Wittes, the law is for people like you and me, who would, if we were convicted, have to deal with harsh sentencing guidelines and the most incarceration-oriented criminal justice system in existence, a system that was clearly created on a bipartisan basis. What an American general calls a “war crime” isn’t anything for us to worry our pretty little heads over; it’s just a simple “policy difference.” Torture of not only human beings, but also language.

But the most disgusting part of Wittes’ argument is his praise for the Obama Administration key position, which Wittes “believe[s] correct,” not to “do violence to the two-century-old tradition in American life of incoming presidents’ not prosecuting outgoing ones.”

Notice that rhetorical trick? The word “violence,” which carries a negative connotation, isn’t used to describe waterboarding a person more than 3 times a day for a month, (or to destroy the evidence of it) or to describe the more than 100 prisoners who died in U.S. custody in Iraq and Afghanistan between 2001 and 2006.

Instead it’s cleverly employed to describe what Obama would have been doing if he had fulfilled his campaign promise to investigate and prosecute people who committed war crimes during our “War on Terror.” Thus, it is not “violent” to securely bind a person’s feet, elevate them and bind him securely “to an inclined bench, approximately four feet by seven feet.[to place a cloth] over the forehead and eyes, [and then apply water] to the cloth in a controlled manner [to produce] the perception of 'suffocation and incipient panic'."

But to prosecute someone who performed this, or ordered it, that would be to “do violence.” Doublespeak at its finest.

With this double standard and clear doublespeak in mind, consider how Wittes would confront the “policy differences” he would have with someone like Julian Assange. Writing, in another post, about the problem in holding someone like Assange, an Australian citizen, accountable under U.S. law, issue, Wittes openly admits to a belief in hypocrisy:

If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same. But I agree with Tom that the situation would be very awkward.

“Awkward?” Seriously? I don’t think that’s how foreign governments, or people like Assange (who last week raised, as a defense against extradition, his fear of extrajudicial detention by the U.S.) would describe a law is an admitted double standard, do you? “Very sorry to disturb you, Sir, but your blatant hypocrisy in detaining me indefinitely for doing something you routinely do and condone is making me feel, well, awkward.”

Getting past the “awkwardness” Wittes acknowledges, he at least admits the problem inherent in holding Assange accountable under American law for what the press in the U.S. routinely does by disclosing classified material given to them by third parties. He writes that he is “tentatively persuaded that some jurisdictional limitation is probably appropriate” and goes on to state that he “suspect[s]” that such a limit on U.S. law would “probably get Assange off the hook.”

So, to recap, Wittes believes:

1. The Obama Administration’s decision not to investigate what U.S. General Taguba called “war crimes” on our part is “one of the more courageous things ... it has done.”
2. The Obama Administration’s disclosure of internal memos composed during the Bush Administration describing torture is “a great deal of accountability for past detention policy.”
3. There was no need for this “accountability” anyway since “‘accountability for torture’ is... the criminalization of policy differences–nothing more or less.” “
4. Obama rightfully decided that waterboarding someone 183 times in a month and destroying evidence of this was not worthy of prosecution and, if he had done so, he would have done violence to tradition.
5. Wittes is “not against double standards” and the “right answer” is possibly “hypocrisy,” even though this could be “awkward.”

All of which leads to Wittes’ belief in the best way of dealing with Julian Assange, who might object to the “awkwardness” of indefinite detention for violating U.S. law, which even Wittes admits “probably” doesn’t apply to him. Wittes writes:

[T]hat sex crimes case in Sweden is looking better and better as way of neutralizing Assange.

Got that? As if the cries to simply assassinate Assange (by numerous U.S. officials and future Presidential candidates) weren’t enough, Wittes openly acknowledges how convenient it would be for the most powerful nation on the earth, (with vast resources, available hypocrisy, immunity from war crimes prosecutions, and against whom the disclosure of internal memos brings “great... accountability”) if Julian Assange were neutralized due to a “sex crimes” prosecution.

We need a well-functioning judicial system to protect the public from people who break the law and also to protect those accused of violating it from wrongful conviction or punishment. But what should also be clear, but often isn’t, is the need to also protect people like Julian Assange from those who would use the criminal law to “neutralize” him, people like Benjamin Wittes of the Brookings Institution.

In fact, have you ever seen a clearer example of someone who does not believe in the Equal Protection clause? Or, for that matter, the meaning of words such as “courage,” “accountability,” “torture,” “violence,” or even “awkward?”

Jefferson “consider[ed] trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution.” Wittes shows the importance of such a right for people like Assange (or you and me) as well as how easily, and cavalierly, the government- or the think tanks that support it, no matter which party is in power- can stray, claim immunity from, or simply disregard, the principles of its Constitution.

Wittes' response to Greenwald, however, reaches a new low, accusing Greenwald of a "simple-mindedness with respect to wrenchingly difficult questions and a very ugly eagerness to attack honorable people in government, in the press, and in public life more generally who are trying to do their jobs or to express views that differ from his."

You see, when you take issue with those who take Gen. Taguba's conclusion that "war crimes" were committed in our names seriously, you should be civil about it to avoid "awkwardness," I guess.

The man who, very civilly, mind you, calls Obama's decision not to investigate the "interrogation policy" (or what Gen. Taguba called "war crimes") of the past administration "courageous," who equates "accountability" with memo disclosure, and waterboarding with "policy differences," who isn't afraid to employ "double standards” or "hypocrisy," despite its awkwardness, you must comply with one request when you visit his blog, lest you lapse into an attack on the "honorable people," like Wittes, who hold such beliefs:

We have no purity tests here–just a preference for civility and decency.

Audiobook Recommendation #2: Faithful Place

2011-01-13T23:19:00.000-06:00

Just finished the audiobook to Tana French’s Faithful Place, and loved it. Francis “Frank” Mackey, the narrator, is a 40-something Detective in the undercover Division of “The guards,” Dublin’s Police Force. The discovery of a suitcase, found during the demolition of an abandoned flat in “Faithful Place,” a tenement section of Dublin, where Mackey grew up, leads him back home, where he hasn’t been since leaving as a teenager some twenty-two years ago.

The book draws you into a web of family lies and secrets, most of which stretch back generations and remain unclear even to the characters- or the narrator- until they search their own histories, psyches and memories for other things the discovery of the suitcase, or the return of Frank, uncovers. I finished this book today, just as I turned into my own neighborhood and, as I write about it tonight, I’m reminded of my friend Simon, who I met in Coventry, England at the University of Warwick in the early 90’s. Because he studied film history, we talked films a lot and when I asked him what he thought about the one we just watched, he’d say, “I need to think about it for a day or two and then I’ll let you know.”

Like Simon, maybe I should wait a day before I call this a great read, but I think I’m safe in predicting that the strength of the story and the wit and snap of the dialogue will hold up after a few days, or even years. It’s a mystery, but it’s more than that too, as, at its core, it’s a noir story about loyalty to family, to profession, to quick-passing childhood and to clashes between these roles. I wouldn’t call it particularly deep reading, as it’s a fast moving mystery/detective story.

But it’s deep enough, at once both intense in terms of its depiction of alcohol-fueled rage and its effects and intriguing in terms of its ability to make you think deeply about the motivations and techniques of an experienced undercover officer who laughs at the falsely clean morality of the “murder squad.” I don’t know for sure whether, like the best stories I read, I’ll still be thinking about this one in a year. But I’d guess that I will be, and wouldn’t be surprised if, in that same year, it hasn’t been turned into a film.

Back from Break with Book Reviews

2011-01-12T22:57:00.000-06:00

I took what I thought would be a short break from blogging, but didn’t realize it would last for years. My big plans, to write a play or a book instead of a blog, are still that, plans, so I’m back, hoping to make a habit out of this once again. I’ve done a lot of reading too, in the meantime, mostly in those hours I spend in the car every day, driving to courthouses in different counties, if you can call an audiobook reading, that is.

Because most people don’t spend nearly as much time in the car as I do, here, over the next few days, are the top five audiobooks I’ve found over the past year. Some are law related and some aren’t, but they’re all good.

Matterhorn, by Carl Marlantes: It’s described as “A novel of the Viet Nam war” and to me it was like listening in on the actual conversations and adventures of Marines, most of whom were still teenagers, around the time I was born. Marlantes, who later became a Rhodes Scholar after serving as a Marine officer in Viet Nam, has been working on this novel for 40 years. It’s his first, as he’s rewritten and reworked it since he initially put it on paper shortly after coming home from Viet Nam. Thus, it combines the authentic dialogue that only a witness with a fresh memory could record with the wisdom that comes from forty years of looking back. I enjoyed the descriptions of battle, the adventures, but also was intrigued by the soldiers’ dialogue about the changes taking place back at home, particularly race relations, in the 60’s. I was born in 1967, so it was valuable to hear what was “in the air” at that time. I’ve always sort of regretted not joining the military, and this book made me both more regretful about missing out on that opportunity as well as very thankful that I didn’t end up being commanded by some of the officers he portrays. Bronson Pinchot, of Perfect Strangers, does an amazing job reading as well.

Next, Dublin cops and their drunken families. (I haven’t actually finished this one yet, but unless the ending greatly disappoints, it’s a great book.) I have a long trip tomorrow morning and a motion to suppress in Omaha in the afternoon, so I’ll finish it up. It’s nice to be back, if there’s anybody out there...

Changes to the TLC Listserve Coming Soon?

2010-02-10T22:09:00.004-06:00

I wrote yesterday about some of the things Jude Basile said when he spoke to TLC alumni in Dallas in November.

Another thing he promised, or rather simply noted, was that changes would be coming to the listserve. He didn't specify what those changes were, but I cringed, knowing that changes like this rarely work out the way the people who made them anticipated. The Law of Unintended Consequences soon takes effect and the attempt to curtail what is perceived as "objectionable" speech actually serves to amplify it.

But, in my experience, those with the power to change listserve rules rarely realize the effect of their actions until they enact them, and learn the hard way.

So what changes, if any, do you think TLC, Inc., will make to the listserve?

More importantly, will they work out as planned?

"Splendid People and Magnificent Warriors" No Longer Staff Members at TLC

2010-02-09T21:39:00.003-06:00

Yesterday, I wrote about the fact that Carl Bettinger, Fredi Sison and Lynne Bratcher would not be invited back as staff members of Trial Lawyers College. This saddened me as they were three of my favorite staff members at the college in 2005.

Last October, newly named TLC President Jude Basile decided to remove the same three people from the Board of Directors of TLC. That same month, Jude stated the following about his decision and TLC's new direction:

Fellow Warriors:

First of all, and as I commence my service as President of Trial Lawyers College, I want to tell all of you how excited I am about our future. This College is responsible for such magnificent transformations among our Warrior Alumni and for countless quests for justice throughout our country and even beyond our borders. There is scarcely an important case on the American legal landscape that cannot be traced back to TLC in some manner or form. We are doing great things at Thunderhead and at our Regional Programs.

But, before we can commence our future, we must deal with our present and that is the purpose of this communication, which is submitted to the F-Warriors Board in prompt response to their request.

A. My Goal for TLC

My goal for TLC is to take steps now designed to ensure the long-term survival of Trial Lawyers College. In order to do this, my view is that the “STAR” of our College must be its educational product. Our long-term viability cannot be tied to any single personality or person. What we teach and deliver must be so innovative and ably taught that it and it alone is what attracts people to our method.

As I have reflected on what we must do and how we must move evolve, this has served as a guiding star for me.

B. Reasons Behind the Re-Structuring of the TLC “Big Board”

The present Board of Directors for the College has been in place for a very long time when compared to the life of the College. In order for me to institute a program designed to concentrate on our product and achieve TLC’s long-term survival goal, I thought it was important to shape my own governing board. In doing that, I gave my efforts in this regard many weeks of thought and reflection – especially since I was aware that change of the evolving type I needed was going to be BIG. However, I believe we are at a point in the life of this College where we can shoulder BIG changes.

So, as a first step, I considered the need to seek support and guidance from people with whom I share mutual trust and respect.

This is NOT to say I do not have the highest respect for the people who have long served on the TLC Board. On the contrary, I do. Nonetheless, I thought it was important to do what was the absolute hardest thing to do: Reconstitute the Board somewhat to bring in fresh ideas and new thought processes in support of the goals I am required to devise as an incoming President of a respected but evolving institution.
Surely, such a restructuring might bruise feelings – feelings of people I admire and respect. Such a restructuring might also lead to speculation about potential hidden agendas and negative things of that type. I can only say that I mean no injury to any other Warrior. I have no agenda but the agenda I am honestly reciting here. But, in order for me to attempt, initiate and accomplish these things, changes at TLC were needed in my opinion.

So, knowing that to be honestly true, I did not take the easier, softer way. I did what I thought was right.

Over time, my efforts—along with those of the new Board —will have to speak for themselves. If I am given a chance to succeed and the support needed to get a fresh, fair start down this road, I believe we can do grand things together.

C. The Changes to the TLC Board

After deliberate, personal and respectful discussions with the people involved, I requested and received the resignations of Katlin Larimer, Fredi Lynn Sison, Carl Bettinger and Lynne Bratcher– all splendid people and magnificent Warriors. ...

After having handled these painful changes with as much kindness as possible under admittedly difficult circumstances, I then asked three (3) Warriors to come onto The TLC Board, subject to ultimate Board approval: John Sloan, Ann Valentine (who accepted my request on the morning after your Conference Call), and James R. “J.R.” Clary, Jr. I know that a potential fourth slot was mentioned during your conference, but—after reflecting on it further—we are going to keep the new additions at 3.

The 3 new Board members (Sloan, Valentine and Clary) will join the 5 people currently serving on the Board at Gerry’s home in Santa Barbara, California on an early weekend in November. At that point, the reconstituted Board will be approved, after any discussion required. (I realize that some of this is slightly different from that which was reported last evening, but I ask all of you to please understand this is a “work in progress” and there are some changes which have occurred today. However, I truly want all of you to know what is happening as best I can accurately report it and as quickly as I could get it to you.)

An Executive Board Committee will also be submitted for approval consisting of the Officers of the Board: Gerry Spence, Chairman of the Board; Jude Basile, President; Cyndy Short, Secretary; Milton Grimes, Vice-President; and Jim Nugent, Treasurer. Thereafter, we can begin moving forward.

In addition to this restructuring of persons, we will also institute term limits for TLC Board Members so that fresh ideas and people can continue to be infused into the TLC Board. Although still evolving, I believe that term limits are an important component to the reconstitution of this Board. However, as I hope all of you can understand, we need to make certain that those limits occur with some type of orderly, staggered regularity. Thus, nothing is yet final on this score but I am committed to these limits. We just need to devise them properly and I ask for your support and patience there.

The Executive Committee will not be subject to term limits, although the members of the Executive Committee and their service on that Committee are always subject to Board approval. The F-Warrior Board President will continue to sit on the governing board and will not be subject to any term limits imposed by the Big Board.

D. Other Changes

I also feel it is important to have all of the finances and all of the contractual relationships relating to Trial Lawyers College fully evaluated. Thus, we will employ an independent auditing firm and independent counsel to accomplish these inquiries.

E. Gender and Cultural Diversity Issues

In your October 6, 2009 Conference, I know there were concerns expressed about the number of women and minorities serving on the governing board for TLC. Frankly, I understand, respect and share those concerns. We have will have two (2) women on the Board (Cyndy Short and Ann Valentine), along with Betsy Greene as F-Warrior Board President and Laurie Goodman as our Executive Director. We will have Milton Grimes as a Board Member and as part of our Executive Committee.

However, I am acutely aware that the majority of resignations from the old governing board were women – a reality deeply impacting the hearts of the F-Warriors, which means it also will be deeply felt by our Alumni.

Although there were reasons for the resignation selections made (and I simply must ask for your trust in that regard), I do not wish to see any marginalization of women or other culturally diverse people continue as a trend at TLC. Thus, I would ask for the assistance of the F-Warriors Board in suggesting appropriate and qualified Warriors, respected by the Alumni, to be nominated for Big Board service as the term limits of the current Board Members expire.

I understand there are some discussions about the formation of an Alumni-supported or FWB-Sponsored Committee in this regard which could serve this purpose AND as a support mechanism for women and minorities and for all of the diverse portions of our Warrior base. Personally, I think this is a magnificent idea and I would wholly support such an effort. Moreover, once the nominations were made, I would make certain the suggested additions were put before the Board during the appropriate election cycles for a Board vote. I would also work to ensure that the nominated parties were given fair and meaningful candidacies.

Because any nominated party or any party seeking re-election would be subject to Board vote, the suggestions made by the FWB or the Alumni would have to be non-binding, but I welcome the opportunity to work with the F-Warriors in making such a voice in the Board nominating and voting process a reality.

F. November 14, 2009 Alumni Retreat in Dallas

I am honored to be invited to attend the TLC Alumni Retreat in Dallas on the weekend of the 14th and to have the opportunity to address our Warriors. I am looking forward to that opportunity.

In addition, I understand that there may be questions about all of these developments and hopes and goals. I will submit myself to the Alumni for whatever questions are percolating out there among our folks and will do my level best to answer them directly and honestly.

G. Conclusion

I hope this statement is of some benefit to the members of the F-Warriors Board – a Board I admire, representing—as it does—the very soul of our College: The Alumni. I have done my best to be direct and responsive. I have no plan or agenda that will ever be hidden from any of you.

You have requested a statement of my intentions and actions and I have complied just as swiftly as I reasonably could. My preference is that all of you utilize this information to craft your own uniform, accurate report to the Alumni about all that has occurred. On the other hand, I impose no conditions or restrictions on the use of this statement. Consequently, all of my friends and Fellow Warriors on the F-Warriors Board may use this statement as the FWB may think best and proper.

I trust you.

Sincerely,

Jude Basile

Jude states that "there were reasons for the resignation selections made" and that he "simply must ask for our trust in that regard." Fair enough.

But, when he came to Dallas and spoke to alumni attending the F Warrior Annual retreat, he told us, in response to a concerned questioner, that Carl, Fredi and Lynne's removal from the TLC Board did not mean they would not be invited back as staff. In other words, Jude told us, in November, that "off the board" didn't mean "out as staff." People, some of whom had just met Carl, Fredi and Lynne (and Kaitlyn too) seemed relieved.

But that's not how it worked out, as Carl, Fredi and Lynne recently learned.

Three question arise:

1. When actions don't comport with promises, how long should trust continue?
2. How long will TLC alumni believe their ears when their eyes reveal broken promises?
3. Will anyone, from the TLC Board, or among the staff, ever dare to voice an honest opinion again, if it contradicts with those in power and thus risks removal and, later, exclusion?

More TLC Shakeups

2010-02-08T21:32:00.002-06:00

I haven't blogged much lately- feel crazy busy with work- but found this comment on a past post "Seeking TLC Feedback:"

I hear that earlier this week (February 2010), the TLC Board of Directors officially fired Fredi Sison from staff. Since you are on the F Warriors Board, would you please check on this? I hope it is not true or, if it is true, I hope it is a decision that can be reconsidered.

Fredi is simply one of the best. That's why she was chosen to be on the Board of Directors of Spence's Trial Lawyers College. When Jude Basile took over as President of TLC last year, he removed Fredi, Carl Bettinger, Kaitlyn Larimer, and Lynne Bratcher from the Board.

When we gathered in Dallas in November, for the F Warrior retreat, someone asked Jude if these former Board members would return as staff members. He said they would, and went on to say that he wanted to open up the process by which staff are chosen.

So why no openness around this new development? I don't know, but I found another comment, which further intrigued me:

So, when are you or someone going to write about Fredi Sisson, Mary Pekam and Carl Bettinger being taken off staff by Jude Basile? What the hell is wrong with TLC and why are the alumni letting the new leadership get away with throwing the best teachers off the staff? The silence is deafening!

Here's your answer: Because of the silence, only a few people even know! And because no one knows the facts, the few that know about these "firings" (they're volunteers who pay their own way to TLC events!) can only speculate, like this commenter:

I have heard that Fredi Sison, Mary Peckham and Carl Bettinger are all off staff because they are friends with the former Executive Director. Can you please write about this? Who else has been taken off staff and why? If this is true, it is bogus and bullshit! What makes me the most sick is how no one speaks up, complains about or protests the very unTLC like actions of the new president and of Spence himself.

I agree that the "silence is deafening" and that someone needs to check on this so the alumni know the facts. I haven't heard anything from any other FWB members, so assume that this will be news to them too. But, in an effort to answer these questions and separate fact from speculation, I sent this email to the FWB:

"I've heard from several sources that the Board removed Fredi Sison, Carl Bettinger and Mary Peckham from TLC staff, but have heard nothing about this on the listserve or from other FWB members. I've also been asked by several people to find out more information about this. Isn't this in direct contradiction to what Jude promised in Dallas in response to a question about whether former Board members would return as staff? Isn't is also in contradiction to Jude's promise to strive for more openness about such matters?"

Will we hear more silence or are we entitled to the facts, and maybe an explanation if it turns out Fredi, Mary and Carl are no longer on staff?

$100 Flat Fee for Misdemeanors?

2009-12-23T22:10:00.002-06:00

See any problems with an attorney who is willing to take cases for this rate? I found this World Herald article from May 12, 2005:

A court-appointed lawyer in Douglas County Court who spends 20 minutes representing someone with a traffic ticket is now paid the same as a lawyer who spends 20 hours defending a suspected murderer.

Douglas County judges have changed the pay for court-appointed attorneys from $50 an hour to a flat fee of $100 for any traffic or criminal case. The attorneys represent indigent defendants when a public defender has a conflict of interest.

The change, which took effect May 1, is expected to save the county $10,000 a year, said presiding Douglas County Judge Thomas McQuade.

Douglas County Public Defender Tom Riley and some Omaha attorneys are concerned that a poor person charged with a crime could see second-rate representation as a result of the change.

Riley said the pay change causes him concern and raises some questions.

"It puts a lot of lawyers in private practice in the difficult position of deciding whether they're going to take appointments and represent the indigent," he said.

Riley said that a lot of young lawyers cut their teeth on court- appointed work and that the lower pay could discourage them from getting involved.

McQuade said yearly increases in attorneys' fees prompted the change.

Years ago, he said, the county spent between $30,000 and $35,000 to pay the attorneys. Now, he said, it's up to between $85,000 and $90,000.

"It's been kind of a creeping thing," he said. "This is just a way that we thought we could just control our budget a little bit better."

He said the change won't jeopardize poor defendants. He said 90 percent or more are represented by the Public Defender's Office.

McQuade said the judges asked some lawyers before changing the pay whether they would accept court-appointed cases at $100 a case, and many said yes.

"We got a very large list of lawyers who said, 'Absolutely, we'll do that,'" he said.

But Eric Whitner, an Omaha defense attorney who took 10 to 15 appointments per year under the old pay structure, said he'll no longer take on the cases.

Whitner, who charges $150 per hour for misdemeanor cases and $200 an hour for felonies, said the $100 rate is "an insult to me. It's an insult to my staff."

Scaling back the already insufficient pay "sends the wrong message," he said, and raises a concern that indigent defendants won't get access to experienced, knowledgeable lawyers if the Public Defender's Office can't defend them.

"They deserve adequate representation, just like anyone else," said Whitner, a member of the Nebraska Minority and Justice Task Force.

McQuade said there's "no question" that the court-appointed lawyers do more than $100 worth of work representing the defendants from the time of arrest until a case is concluded in County Court or transferred to District Court.

Under the old payment system, the "vast majority" of court- appointed lawyers made agreements with judges to charge only between $50 and $150 per case, even though they worked more than one to three hours, McQuade said.

"Obviously, they were willing to go ahead and sacrifice something just to help out," he said.

The flat fee applies only to cases in county court. In district court, attorneys are paid $65 an hour for out-of-court work and $80 an hour for in-court work. The pay is capped at $12,000 for first- degree murder and $3,500 for any other criminal charge. A judge has flexibility to pay more for an extended or complex case.

Court-appointed attorneys in Lancaster County Court are paid $50 per hour, with no limit on the number of hours, said Becky Bruckner, the court's judicial administrator.

Omaha defense attorney Mike Fabian, who has done a lot of court- appointed work, also questioned the change.

"It just causes me some concern that there is no means by which different types of more serious cases can be reviewed and adjustments made so that all of the assets are there to defend the case," he said.

McQuade said the county's first duty is to make sure indigent clients have adequate, competent representation.

"If we can get it done for less money, the same kind of work, I think it's our duty to make sure we try to do that," he said.

What do you think? Can we truly "get it done for less money" with the "same kind of work?" How many misdemeanors get tried to juries when the lawyer's fee is capped at $100? Not one that I know of in ten years.

What do you think Thomas Jefferson, who called trial by jury "the only anchor yet imagined by man by which a government can be held to the principles of its constitution" would say about such an arrangement?

Seeking TLC Feedback

2009-11-05T22:28:00.002-06:00

As I've driven across the city this week, I've written many blog posts in my head, silently promising to write them down when I get home. Somehow, the brilliant idea doesn't sound so great once I find the chance to type and I postpone writing long enough to forget what I meant to say.

But when I sit down tonight, still trying to adjust to Daylight Savings Time, hoping to write something worthwhile, that sheds more light than heat, it occurs to me that, as Gerry Spence once said, there's a good reason why we were given two ears and only one mouth.

So rather than talking, I'd rather listen.

Rather than telling you what I think, I want to hear what you think about the Board Shakeup at TLC, the alumni meeting in Dallas, and whatever else is on your mind. Anonymous comments are allowed, but please keep things civil while still keeping it real.

What's on your mind, that you'd like to see the F Warrior Board discuss in Dallas?

Good News!

2009-11-03T21:00:00.002-06:00

I don't know about you, but I can use some. While a lot of news is bad, I came across a story that hasn't gotten much attention but which I found uplifting. As a prelude, one year ago tonight, Obama was elected. When he proposed to sit down with Professor Henry Louis Gates, Jr., and the Police Sergeant who arrested him, James Crowley, people reacted largely according to the way they voted: some admired the gesture and some laughed at it.

But when I read this week that two men met quietly in a Cambridge bar, talking for an hour over a couple beers, out of the spotlight and barely reported in the press, I thought it was a good sign. The two men? Henry Louis Gates, Jr., and Sgt. James Crowley, minus Barack Obama. As the article described it:

Harvard Professor Henry Louis Gates and Cambridge police Sergeant James Crowley were spotted at a pub in Cambridge Wednesday night.

The owner of "River Gods" told WBZ the two sat in a booth together and talked for about an hour.

While many of Obama's campaign promises have been broken and many of Bush's worst policies continued, the fact that what was called the "Beer Summit" led to a second round of talks, and beers, I take that as Reason for Hope.

Email from the High School

2009-10-27T21:32:00.004-05:00

Went to a seminar this afternoon about malpractice risks for attorneys, simply for the insurance discount, bored to death and thankful for the internet access. Halfway through, I get an email from my daughter's high school:

We were alerted by the Omaha Police Dept. that a student had left his home earlier today and was probably armed. While no threats of any kind were directed toward the school or any students, we followed our established procedures to ensure the safety and security of all students. Furthermore, we also worked with the Omaha Police Department who did find the student a short time after they had alerted the school of this matter, thus bringing this incident to a close.

Knowing what I do about bureaucracies, I cynically suspected either exaggeration or minimization, but also suddenly realized what was important, why I leave the house in the morning, and that risks can appear where you never suspected them.

Is TLC a Cult?

2009-10-26T22:21:00.002-05:00

A commenter leaves a message:

Do you think TLC is a cult?

The question reminds me of a line from the movie The Survivors when Walter Matthau's character confronts Robin Williams' "Donald Quinelle" who's joined a cult of survivalists:

Sonny Paluso: You think Wes is God, don't you.
Donald Quinelle: No, not God, Just an ordinary man. Maybe a little ahead of his time, but just an ordinary man.
Sonny Paluso: Wes is an asshole.
Donald Quinelle: Blasphemy! Oh, you'll smoke a turd in hell for that!

In other words, Gerry isn't a God, he's just an ordinary man and anyone who says differently has blasphemed our Dear Leader and must be either reprogrammed or shunned! Boil up a batch of Kool Aid, somebody's starting to sober up!

Just kidding. My honest answer is that I don't think it is. But I fear it's becoming a cult of personality, more loyal to personalities in power than to the principles that made it such an amazing experience.

I'm on the F Warrior Board. One of our rules, newly created, is that we can't divulge internal discussions. I'm not saying I agree with it or not, but it's a rule, voted in, after a particularly heated argument.

I bring it up to demonstrate why I edited the email I sent to the rest of the FWB tonight. I didn't selectively edit for my own purposes, in other words, but to comply with the rules. What I said might answer the question:

I was looking forward to Dallas but responses like [X's] that accuse the questioner of being "distrustful" make me think our meeting, so helpful last year, will likely degenerate into personal attacks and tests of loyalty (which is defined as not asking any tough questions) rather than an honest dialogue about what's best for the alumni.

It's true that change is hard, but it's also true that what organizations need is a variety of viewpoints and people with a willingness to ask tough questions and debate honestly. It's also true that our mission is independent of the TLC Board and that our Board was designed to support the alumni rather than the TLC Board.

In fact, dig out your Spring '06 Warrior where [] describes the beginnings of the F Warrior Club as "from the moment of its inception, it was designed to be comprised of the Alumni, by the Alumni and for the Alumni.. While supportive of TLC the F Warrior Club was always meant to be autonomous, answering only to the needs of the Alumni."

He goes on to say that the FWB was then created and "was never meant to govern, but only to serve the interests of the club."

Are we living up to that foundation now, assisting the President as he drafts explanations of his decision to "reorganize" the board toward obsequiousness, accusing each other of being "distrustful" when someone respectfully asks questions or points out that what she saw at Grad II differs from the official company line, undoubtedly in the name of fulfilling her role representing her regions' alumni?

And rather than accusing people who ask questions like this of having [issues] or of [spreading innuendo] perhaps we should be asking ourselves what is the best way to carry out our mission statement, the best way to "answer only to the needs of the alumni" as [T] put it several years ago.

Our interpretations of how to serve the alumni will differ, which is why we're all necessary. My fear is that our meeting will quickly become part witchhunt (for whoever forwarded [Y]'s email to [Z]) and part loyalty test where anyone who asks tough questions won't have them answered but will instead be attacked personally, accused of being distrustful for daring to speak out. My other fear is that, much like the TLC Board, we will degenerate into sycophancy toward personalities rather than carrying out TLC principles.

Not exactly what the alumni need right now, at such a trying time, in my opinion. How about instead we strive for transparency to the alumni who may be, understandably, confused about what's going on inside TLC?

Why not encourage all of us to speak openly, without fear from personal attack, much like we're taught to honor the gifts jurors share with us in voir dire?

I'm glad you're optimistic, [] but I'm not so sure, given what I've seen so far. Gerry says "love is always the winning argument" but I'm afraid we've forgotten it and that it will tear us apart in Dallas when we so desperately need to come together...

P.S. [X], Thank you for your courage in speaking out and being real. We know what happens to people who dare to exhibit these traits on the TLC Board, but we should encourage them on ours if we're truly "answering only to the needs of the Alumni."

TLC Board Shakeup

2009-10-06T21:08:00.004-05:00

Just heard that new TLC President Jude Basile made some changes to the TLC Board of Directors, the "Big Board" as it's known. Out are Kaitlyn Larimer, Fredi Sison, Carl Bettinger, Lynne Bratcher, and Gerry's wife Imaging Spence.

As I said on our F Warrior conference call when asked my feelings about these changes:

"I think it's bullshit. Those people are my heroes"

And they are. But they're gone. And they, other than Imaging, also were the three highest vote receivers in Norm Pattis' blog survey.

I was surprised, but apparently others, at least those who voted, were not.

Why We Need Healthcare Reform

2009-09-20T20:56:00.003-05:00

My daughter asked if her 15-year old best friend could stay the week, as one parent is going out of town and the other doesn't have room in the apartment that she shares with a friend to save money. Last Friday morning, after I agreed to this, my daughter told me:

"Dad, we need to get there early since she's got a broken toe and they don't have health insurance and they can't afford to take her to the doctor so they're just letting it heal on its own which means she needs extra time to walk to class, so can you get us there fifteen minutes early all week?"

Thickening Blue Line?

2009-09-20T20:33:00.003-05:00

I ran a 10K this morning in downtown Omaha with thousands of other runners. I came in just over 56 minutes, which isn't fast but about killed me, especially since I haven't run more than 10 times this year.

One reason I was able to run without stopping was the people who came out to cheer us on, to yell out our pace and simply to watch. It was uplifting to be out early on a beautiful Fall morning, running in perfect weather and for a good cause, as the proceeds went to the American Lung Association. At the end of the race, my lungs were expanded yet exhausted.

The only downside to the morning came from a few of the police officers who waited along the route. I knew most of them from court and waved at them as we ran by. I even knew a few of their first names and yelled them out. Most waved back, a few even remembering my name. It was great.

But a few simply stood there behind mirrored shades, neither waving or even acknowledging my presence as we ran by. I understand this when it happens in court, how when you're with your fellow officers you don't want to acknowledge that you occasionally have conversations with a defense attorney. It always strikes me as funny, however, sort of like high school, how one group can't acknowledge that they associate with a different group when their friends are around.

The good news is that for every officer who stands there like the man with no eyes in Cool Hand Luke, there seem to be more who are willing to wave back on a Sunday morning, who seem willing to follow the law rather than becoming it.

I hope the ratio stays that way.

Real Lawyer?

2009-09-09T22:50:00.001-05:00

Met with a 19 year old today who is confronted with a choice: plead to a charge that he’ll likely win at trial or wait for two months to take his case before a jury. The story he told me, about joining a gang as a kid when his family wasn’t there, and then finding out that only a few of this new “family” was true to him, was terribly sad. He described “taking a charge” for two felons after being pulled over in a car with a gun under the seat. Since he wasn’t a felon, taking the hit for them gave him some cool points and saved them from going to back to prison.

My wish would be to take the case to trial, but I’m not the one who has to wait it out in a jumpsuit. Still, I try to tell my clients that it’s my job not only to take care of them in the short-term, but also to make sure they’re advised to think about the consequences, in the long term, of another conviction. When I was a Public Defender and a client would ask to come in right away, to plead guilty and thus get an “out date” to visualize, I used to say, “give me a week and I’ll save you a month” or “give me a month and I’ll save you a year” in some circumstances. Put in these terms, it brought home the fact that the certainty they wished for, that drove them crazy in jail, wasn’t something to grab at teh first opportunity. Better to wait until the time was right and claim the type of certainty that not only made you feel better in the short term but also kept you from sitting in jail any longer than necessary.

But who am I to decide? While I tell people whether I think they should go to trial, I always tell them it’s their decision. How easy is it for me to say, “wait in jail for a couple months to go to trial” when I get to walk out of jail and sleep in my own bed that night?

During my first year out of law school, when I was working as a p.d. in misdemeanor court, a client called me with a compliment I’ll never forget. He said, “you’re a real lawyer.” It meant a lot, but it was also a little double edged. What I’d done for him, that made him call me with this compliment, was to assist him in pleading guilty to a charge that he would likely have won at trial. He was simply happy because he’d gotten out of jail before his trial date, which was better that he’d expected. He’d disregarded my advice to go to trial and chosen to admit to a weak charge, being unable to make bond and likely a little nervous about going to trial.

He thought I was a real lawyer not because I fought to take his case to trial, but because I arranged a deal that got him out of jail earlier than he’d expected, but which had also planted yet another charge on his record.

While I was worried about sufficiency of evidence and innocence, he was more concerned with sleeping in his own bed. I couldn’t blame him, but I didn’t feel very “real.”

Removing Gang Signs

2009-09-08T22:22:00.002-05:00

I have a client who is in inpatient treatment for meth addiction. She called me the other day, asking about getting the tattoo on her neck removed, as she’s reached the level of the program where she can begin working again. I guess there are only certain places you can find jobs when you have a visible gang tattoo on your neck. She wanted out of those type of jobs, even after just a few months of sobriety. A good sign, I guess. Her tattoo is of the number 13, apparently for the 13th Street Surenos. I’ve never asked her about it, but it’s hard to miss the numbers.

Last Sunday morning, when I woke up early, put the kayak on top of the car and kayaked around an almost deserted lake about a mile from my house in West Omaha, I saw this same symbol spray-painted on a concrete wall as I passed under a bridge, between a couple boats. The letters “Sur” were scrawled beneath it, a symbol of a South Omaha gang about 10 miles from 13th street, on the edge of the suburbs.

The morning kayak ride was a good way to forget about the pain, the violence and the drug addiction I deal with all the time. But the symbol, close to home, was a reminder that the problems on 13th street will eventually show up on our own streets if they’re not properly addressed.

My client tells me she’s heard of free laser tattoo removal of gang tattoos and wants to ask her friend about it. I thought of approaching the prominent Omaha dermatologist, the guy who founded lovelyskin.com, and asking him to donate a free laser tattoo removal, a reward six months of sobriety.

Do you think he’ll laugh? Since he probably lives “out west” where I do, I can show him the gang symbol on the bridge, tell him that if he takes the gang symbol off her neck, I’ll find a way to remove the sign from his neighborhood.

Do you think there’s a chance?

High Stress Job

2009-08-27T22:44:00.003-05:00

I was in Douglas County District Court this week when I heard the Thunder Collins verdict was about to be announced. I have great respect for his lawyer, Steve Lefler, and always like the drama of a verdict, so I went in. As I waited in the courtroom, I struck up a conversation with a reporter, which wasn't hard as most of the 15 odd observers were members of the press. When I mentioned how difficult a trial such as this must be on the lawyers and their families, the reporter, whom I recognized from a lot of tv broadcasts, said, "I know how stressful it can be. I used to be a prosecutor in Denver." He went on to say that he gave it up, not only being a prosecutor but the practice of law altogether, and became a reporter.

When I mentioned that I empathized, having not had enough sleep this week and waking up in the wee hours thinking about cases, he said he used to do that too. "Now I sleep like a baby," he said.

I still couldn't imagine doing anything else though. As stressful as it is, I still find it exhilarating enough to make it all worthwhile.

Bloodsport

2009-08-06T21:49:00.004-05:00

Had a chance to get away last weekend to Chicago with my family. It was wonderful. On Sunday, I jumped on the subway just before gametime and walked, ticketless, to U.S. Cellular Field, where the New York Yankees were taking on the White Sox. I walked past the ticket scalpers standing along the street and offered the guy right outside the stadium a little less than face value, it being the bottom of the first inning by that time.

The game was great, the stadium amazing, and the chance to see Mariano Rivera pitch and Melky Cabrera hit for the cycle a once a life chance for me. It was the third regular season major league game I'd ever seen and the first one that didn't take place at Kaufmann Stadium in Kansas City.

The only downside of an otherwise spectacular day came when the Yankee fan stood up, holding a sign, shouting "New York Yankees" in the middle of what used to be Comiskey Park. It was all in fun and the White Sox fans around me started shouting things back and joking around with the Yankee fans in our area.

Then the Chicago Police charged down to the section below us and a guy in a White Sox uniform stood up, obviously mad at whatever had just happened to him or because of those $6.75 plastic bottles of Miller Lite that circulated between the aisles a few times per inning.

When the cops, all eight of them, pulled the man up out of his seat, it was obvious he was upset. He seemed to be "making his case" to the cops, gesturing wildly and yelling. Then one cop who was standing one step down from the man, between him and the seat he had just been sitting in, tackled him, taking his head straight into the concrete steps of the aisle. Then, as the guy struggled beneath him, the cop stayed on top of him, knees of his chest as the guy appeared to be struggling either to get up or to breathe.

Then three more cops charged down the aisle, one slapping the guy in a headlock and the others each grabbing a leg, the cop who tackled him standing up as if taking down an unarmed drunk guy who was not threatening you while you're surrounded by six of your friends in body armor with tazers and guns was some type of contest.

What struck me most, however, wasn't the unnecessary violence, but the way the crowd applauded as the four officers drug the guy away, as if this was a part of the entertainment, the game. The guy next to me even remarked "he should have at least taken a punch at the cop out here since you know they're going to beat the *#$% out of him in the back."

We Don't Need No Stinkin' Dogs!

2009-07-20T20:19:00.002-05:00

I lost a motion to suppress once because the judge believed the police officer who claimed to have smelled marijuana coming from my client's car as it passed perpendicular to him as he was stopped at a stoplight. Since the officer found a roach in the ashtray, but no other marijuana, the judge believed the officer, and the arrest, which ended up resulting in a DUI stop, was upheld to my disbelief.

Now the press believes officers like this without any question about the outrageousness of this claim. As a local TV station reported today:

"Two Omaha Police Officers can credit their noses for one of the latest marijuana busts. While in their cruiser they smelled the odor of marijuana from the car they were following.

According to the report the officers were following a green 1999 Dodge Dakota pickup north on 52nd Street on Wednesday, July 8th, when the officers noticed the odor of marijuana.

Believing the marijuana smell was coming from the pickup ahead of them they slowed the cruiser, and the odor disappeared. Officers pulled the pickup over at 52nd and Northwest Radial Highway and told the two occupants in the vehicle why they were stopped.

The officer say the passenger admitted to smoking a "roach" recently, and told them it was still in the ashtray.

The passenger was taken out of the pickup and searched. Officer say they found .13 ounces of marijuana in a baggie in her front left pocket.

Nekeesha Lewis, 24 was cited for possession of marijuana and released."

Reasonable search?

Are we "going to be going after him for that?"

2009-07-11T09:48:00.002-05:00

Compare these two New York Times articles, both describing prominent Neocon Paul Wolfowicz: First, in 2002, an article described Karl Rove calling Mr. Wolfowicz and asking him to speak at the White House regarding the Bush Administration's stances on the Middle East. Describing as a "soft-spoken" person whose "world views... were forged by family history" after the "rest of his father's family perished in the Holocaust," it quotes him as saying:

''That sense of what happened in Europe in World War II has shaped a lot of my views,'' he said. ''It's a very bad thing when people exterminate other people, and people persecute minorities. It doesn't mean you can prevent every such incident in the world, but it's also a mistake to dismiss that sort of concern as merely humanitarian and not related to real interests.''

Admirable, right? But still, whose views wouldn't be shaped by such a traumatic family history? It reminded me of my 15-year old daughter, who picked up Schindler's List last night at the video store, stopped in halfway through, unable to bear the dramatized horrors as she was unable to fathom the real horror that was represented on the screen.

But today's New York Times quotes Wolfowicz, secondhandedly, taking a different stance toward similar war crimes. James Risen's article, headlined "U.S. Inaction Seen After Taliban P.O.W.’s Died," claims:

After a mass killing of hundreds, perhaps thousands, of Taliban prisoners of war by the forces of an American-backed warlord during the 2001 invasion of Afghanistan, Bush administration officials repeatedly discouraged efforts to investigate the episode, according to government officials and human rights organizations.

The article goes on to describe how "in 2002, Physicians for Human Rights asked Defense Department officials to open an investigation and provide security for its forensics team to conduct a more thorough examination of the gravesite" but were "met with blanket denials from the Pentagon."

The next year, according to a "former defense official, who would speak only on condition of anonymity:

"... prisoner deaths came up in a conversation with Paul D. Wolfowitz, the deputy secretary of defense at the time, in early 2003.

“Somebody mentioned Dostum and the story about the containers and the possibility that this was a war crime,” the official said. “And Wolfowitz said we are not going to be going after him for that.”

Wolfowicz' response? You'll recognize the line, repeatedly repeated by many Bush Administration players:

In an interview, Mr. Wolfowitz said he did not recall the conversation. However, Pentagon documents obtained by Physicians for Human Rights through a Freedom of Information Act request confirm that the issue was debated by Mr. Wolfowitz and other officials.

If we've learned anything from the Bush years, it's that the word of an official "who wishes to remain anonymous" shouldn't be enough to establish the truth about anything. Still, if true (the FOIA docs should shed light on this) how do we reconcile these two statements?

Juxtapose Wolfowicz' statement that "what happened in Europe in World War II has shaped a lot of my views" with his alleged statement that "we are not going to be going after him for that." When you read in the same article that the "that" Wolfowicz was allegedly claiming "we weren't going to be going after him for" referred to "killings" that...:

...occurred in late November 2001, just days after the American-led invasion forced the ouster of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to General Dostum’s forces, which were part of the American-backed Northern Alliance, in the city of Kunduz. They were then transported to a prison run by the general’s forces near the town of Shibarghan.

Survivors and witnesses told The New York Times and Newsweek in 2002 that over a three-day period, Taliban prisoners were stuffed into closed metal shipping containers and given no food or water; many suffocated while being trucked to the prison. Other prisoners were killed when guards shot into the containers. The bodies were said to have been buried in a mass grave in Dasht-i-Leili, a stretch of desert just outside Shibarghan.

A recently declassified 2002 State Department intelligence report states that one source, whose identity is redacted, concluded that about 1,500 Taliban prisoners died. Estimates from other witnesses or human rights groups range from several hundred to several thousand.

How do you decide that "we're not going to be going after him" for stuffing prisoners into closed metal shipping containers when thousands were killed and buried in mass graves when your "views" were shaped by "what happened in Europe in World War II?"

"The Consequences Might Have Been Worse"

2009-07-09T22:35:00.004-05:00

NPR banned the word "torture" to describe things, like waterboarding, that were done to detainees by government employees or contractors. Instead, they're described, in language that mirrors governmental euphemisms, "harsh interrogation techiques." Here's how NPR Ombudsman Alicia Shepard described NPR's reasoning:

I recognize that it's frustrating for some listeners to have NPR not use the word torture to describe certain practices that seem barbaric. But the role of a news organization is not to choose sides in this or any debate. People have different definitions of torture and different feelings about what constitutes torture. NPR's job is to give listeners all perspectives, and present the news as detailed as possible and put it in context...To me, it makes more sense to describe the techniques and skip the characterization. For example, reporters could say that the U.S. military poured water down a detainee's mouth and nostrils for 40 seconds.

When Glenn Greenwald called her on this twisted logic, he pointed out that NPR had no such policy against calling other countries' techniques "torture." For example, in a July 3, 2009 story about the plight of a Gambian journalist, an NPR story stated:

Musa Saidykhan had been a reporter in his home country of Gambia for more than a decade when he was arrested and later tortured by government officials.

NPR's Alicia Shepard refuses Greenwald's request for an interview, but later appeared before him on a Seattle NPR station on Tuesday. In explaining NPR's policy against using the word torture to describe U.S. government actions and its willingness to use it to describe Gambia's, Shepard commented:

In that case, these were strictly tactics to torture him, to punish him, versus in the United States, and the way that it's used, these are tactics used to get information. The Gambian journalist was in jail for his beliefs.

In other words, when Jack Bauer does it, its not torture. His beliefs, being pure, make it so. But the techniques the dark-skinned guy performed on Jack's friend that drove Jack into the rage? That's different. That's torture.

And those detainees in Gitmo who are held without charge or trial indefinitely? We can't call what our government does to them torture because that's not the role of a journalist. And those detainees are different than the Gambian who "was in jail for his beliefs."

As Greenwald pointed out, not only is her belief that American officials' motives were pure highly questionable, but the willingness to characterize torture as dependent on the motive of the would-be torturer is deeply troubling. (Somehow I don't think the judge or jury will buy my argument that while my client performed the actions that constituted the crime, his pure thoughts along the way mean that the law doesn't apply to him!)

As sickening as Shepard's logic is, however, it's also familiar. It's troubling to hear her boldly claim that the motive of the actor determines whether the action is noble or detestable, technique or torture, but it's the same argument the government puts forth in carrying out the death penalty, isn't it? In other words, the state's position that a killing by a citizen can, in some cases, be so terrible that the state needs to kill this person is similar to Shepard's belief that the motive and not conduct determines whether an action is heroic or villainous.

I saw a shirt once that asked, "How can it be o.k. to kill someone to show that killing someone is wrong?" I know my answer to it, but also don't think the death penalty is going away anytime soon. As depressing as that is, my bigger fear is that another question, a new one, will be asked.

Imagine a police report that stated, Shepard-like, that "the tazer was not at anytime deployed to torture him, nor to punish him, but simply to get information." It sounds strange now, but it's getting closer to sounding completely normal. Don't believe me? Consider this story regarding a local police chief's use of a tazer on a 14-year old girl:

A 14-year-old Tucumcari girl is recovering at an Albuquerque hospital after being shot in the head with a Taser dart by Tucucmari Police Chief Roger Hatcher...
The girl was hit in the head Thursday by one of two darts fired simultaneously as she was fleeing, Hatcher said...
Hatcher said be believed he had no other option.

“There’s a lot of issues,” Hatcher said. “She committed a delinquent act. She was running from police across traffic without looking.”
Hatcher said he chased her, ordered her to stop and “then did what I had to do.”

After a CAT scan, a hospital resident told her the dart was “in her brain a little bit, but not much,” Akin said.

She was in pediatric intensive care following the surgery, Akin said. “She seems OK, but she she’s in a lot of pain. Her head is hurting her real bad.”

Police were trying help Akin because she and her daughter had been fighting, Akin said.

Akin said while she could understand the use of a Taser on an adult, it shouldn’t be used on a child.
Akin also said her daughter has epilepsy...
Akin said she and her daughter were arguing over a cell phone...

Hatcher said he got out of his vehicle, called to her and she ran in front of his patrol car across Monroe Street without looking for traffic.

Both were in a dead run when the Taser was fired, Hatcher said.

Hatcher said if he’d been able to grab her and put her on the ground, he would have done it instead of firing the Taser. “There was a lawful reason to do that,” said Hatcher. “I didn’t have another choice and had to get her stopped.” Akin and her daughter were new in town, Hatcher said, and he did not know where she would go. Hatcher said if he had not stopped her the consequences might have been worse.

If a police chief can justify tazering a 14-year old epilepsy victim because she fought with her mom and refused his command to stop by claiming she didn't look both ways while running into the street, claiming, Shepard-like, that while applying electric shocks to people in custody is only wrong if used to punish or not when it's used to supposedly keep her safe, the use of the tazer for "getting information" is not far off.

In an example of shifting attitudes toward tazering, consider what the mother of the 14 year old girl said shortly after hearing that the electrical prongs penetrated her daughter's brain:

Akin said while she could understand the use of a Taser on an adult, it shouldn’t be used on a child.

Fortunately one of the officers reviewing these events is interested in investigating whether charges should be filed:

Hatcher said he plans to refer the case to the Juvenile Probation Office Monday for possible charges.

The tines, they are a changing I guess.

"Post Acquittal Detention"

2009-07-08T22:05:00.003-05:00

Yesterday, the General Counsel of the Department of Defense, Jeh Johnson, testified before the Senate. As Spencer Ackerman described the scene:

Asked by Sen. Mel Martinez (R-Fla.) the politically difficult but entirely fair question about whether terrorism detainees acquitted in courts could be released in the United States, Johnson said that “as a matter of legal authority,” the administration’s powers to detain someone under the law of war don’t expire for a detainee after he’s acquitted in court. “If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”

Martinez looked surprised. “So the prosecution is moot?” he asked.

“No, no, not in my judgment,” Johnson said. But the scenario he outlined strongly suggested it is. If an administration review panel “determines this person is a security threat” and “for some reason is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone” under “law of war authority” as granted by the September 2001 Authorization to Use Military Force, Johnson said.

Think about that for a second, and how it might apply to someone like Salim Hamdan. After he was convicted by a military jury, Hamdan's attorneys argued for a sentence of less than five years. The government, however, asked the jury to sentence Hamdan to between 30 years to life. The jury agreed with the defense and sentenced Hamdan to serve 66 months, after he had already served 60. The Pentagon, after asserting that it had the ability to continue to detain Hamdan beyond the end of his sentence, transferred him to Yemen where he served the remainder of his sentence before being released last January.

Then, shortly after Salim Hamdan was released, Barack Obama, elected on a platform of "change," was sworn in as President. But what has changed? Glenn Greenwald accurately describes the Obama Administration's newly-announced "post acquittal detention" policy as "an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties." He goes on, accurately in my view, to describe the Obama administration's stance as even worse than Bush's:

In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That's clearly the Obama view as well, but he's creating an elaborate, multi-layered, and purely discretionary "justice system" that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded.

In short, that's not change we can believe in, that's even worse than more of the same.

Being In the Moment, On the River

2009-07-07T22:03:00.000-05:00

Last weekend, during a visit to my mother’s house, I faced a familiar problem: I wanted to make time to do what I wanted to do but could also find about ten other things I should be doing. I was about a half mile from the Platte River, a river I spent a lot of time on as a kid, and had noticed the previous day that the water was running high for this late in the summer, high enough to float a kayak. I’d brought mine along on this trip, hoping to sneak in a seven mile jaunt down the river “if I could find the time.”

If I wrote my own verse to Julie Andrews’ “These are a few of my favorite things,” canoeing or kayaking down a river would find some room upfront. But, sitting there thinking of all the relatives I needed to visit and the work that needed to be done, I suddenly realized that while kayaking on a river was constantly on my mind as something I’d love to do for fun, I hadn’t found the time in years. Sure there were some trips to the lake once in awhile, but, at least for me, there’s nothing better than getting away from all people and all roads for a little while, perhaps coming around a bend and looking a whitetail buck, still in velvet, standing on the river bank.

But, I thought, I don’t have any way to get to the river, a half mile away or no definite way to get back when I get to the bridge seven miles downstream. Then, perhaps remembering the scene from Easy Rider where Peter Fonda throws his watch down in the parking lot, I grabbed my kayak, my cell phone a bottle of water and a paddle and started walking. What I thought was going to be a half mile walk became much easier as I realized I could drop the boat and paddle across a lake rather than following the road to the river bridge. I wasn’t sure how close the river channel came to the far edge of the lake, but I was on the water, off on a long overdue adventure at last.

As I drug the kayak out of the lake, wondering how long I’d have to portage again, I saw the river channel, flowing strong, about fifty feet from the lake. Just a few minutes before I hit the river, I’d been standing in the yard of my mother’s house, thinking the river was too far, the time too short, and the water probably too low. Sure I had to trespass a little bit, but, looking back, no one seemed to notice, or at least be chasing me. So I kicked off the bank the way you might if you were launching a canoe, and almost got wet, realizing that even when you’re having fun and undertaking an adventure, you still have to obey the laws of gravity.

A few minutes later, I came around a bend and saw that small whitetail buck I mentioned earlier, and was amazed at how brown his coat was, being more used to seeing them when it faded a little, in the winter. I later saw many Great Blue Herons, the only ducks and geese left being the decoys caught in logjams. Around one bend I surprised a doe who was in the middle of the river, likely crossing but perhaps just cooling off, who ran off as if I’d caught her naked, taking a bath, which I guess was true.

The storm that looked inevitable passed harmlessly, the wind nicely cooling me off along the way. By one cabin a “Chessie” must have smelled me as he barked before I got close and sounded as if he might come leaping off the bank as he protected his home from that strange green shape that carried a silent guy in a blue hat holding a white paddle, a pair of binoculars around his neck.

As I passed under an old railroad bridge that had been converted into a bike trail and walking path, strangely deserted on the Fourth of July, I playfully grabbed the rope hanging down into the water. Being more used to canoeing than kayaking, I almost learned how easy they are to tip when you foolishly grab a stationary object while facing across the current, but miraculously righted myself, probably more from the four-letter words that involuntary came bursting out of my mouth than from the paddling I did with my arms. Somehow I still got pretty wet and added a half inch of water to the bottom of the boat, thankful though that I still had my gear and was more dry than wet with just a mile or so to go.

When I reached the bridge and pulled my cell phone out of the ziplock bag, I called home and convinced my brother to pick me up. It had only been about two and a half hours since I’d charged off without a clue or a plan, but it worked out. I felt like a new person, however, when I pulled up at home.

I found the time to do what I wanted to do, for the first time in years, and it didn’t cost a thing. I’m sorry I didn’t do it sooner and vowed to do it more often.

I also want to get back to blogging. Sorry I’ve been gone so long. I may kayak first, but I’ll write about it later.

Lame Attempt at Humor in Court

2009-06-02T23:11:00.002-05:00

I’m in court today, arguing a motion to reconsider a sentence. The judge accepted the defendant’s plea of guilty to speeding (over 100 in a 55 zone) and his plea of not guilty to willful reckless driving. The problem was that the judge, in addition to imposing a fine, also ordered that the defendant’s driver’s license be revoked for 90 days under the authority of a statute that reads:

Upon conviction of any person in any court within this state of any violation of (1) any law of this state pertaining to the operation of motor vehicles or (2) any city or village ordinance pertaining to the operation of a motor vehicle in such a manner as to endanger life, limb, or property... the judge ... may... order the revocation of the operator's license.”

You see how the offense must “endanger life, limb, or property?” Because of that, a case held that the statute inapplicable to the charge of speeding. so, I’m asking the court to reinstate my client’s driver’s license because, under the statute, its order was unlawful.

I hand the judge the case, hand the prosecutor a copy and, as they read it, I remark that it’s a 1976 decision but that the statutory language is the same. The judge, deep in thought (he’s an intelligent judge), says, jokingly of course and low so no one but the lawyers can hear him, “What were they smoking?”

I didn’t really think it through before I said it but responded, “Well, your honor, it was the 70’s.” Nobody laughed then either, except me later.

The Forever War?

2009-05-14T22:48:00.003-05:00

I read today that the Obama Administration is attempting to do away with the phrase "the war on drugs." Let's hope it's not simply another broken promise and believe our eyes and not our ears. Still, it's refreshing to hear that, at least in spirit, the government may stop its war against its own people, many of whom are simply drug users, or addicts, who, like the client I represent who recently lost his case in the Eighth Circuit, finally get sober during long prison terms for conspiracy to distribute. Not the best way to spend taxpayer dollars, but a fitting way to fight a war where the truth is often the first casualty.

Maybe I'm just down on the term "war" as I've been listening to an excellent audiobook about it, Dexter Filkins' excellent The Forever War tells stories about what he saw as a war correspondent during the wars in Iraq and Afghanistan.

I highly recommend the book as brings the war "home," or as close as a book can bring it, without much commentary or editorializing, but simply with stories of what the author saw while on the ground, embedded with the men fighting it who seemed to be mostly poor kids in their teens or early 20's from a place Filkins had never heard of.

I've been riveted by the stories all week, just listening to the audiobook, sometimes wanting to drive around the block again to hear the end of a story. "Driveway moments" as NPR calls them, are frequent. He describes the 22-year old who sat beside him on the transport, who made a certain comment that stuck with the author and then was killed four days later, for example, or the kid who stuck his arm out and insisted on walking in front of Filkins up the stairs and whose head was then split open by a bullet.

Josh Karton says that "the enemy of all art is generality" and Filkins creates great art, or at least good and memorable stories, by avoiding it with simple, concrete stories that show rather than tell the action and avoid judgment or interpretation of it.

I can't recommend this book enough. I once wrote about a sign that appeared in Iraq stating "America isn't at war, it's at the mall." This book tells the stories of the kids, and others, who went to war instead and who are, in many cases, still there. The stories are good and a lot of good comes from simply hearing these stories that have gone untold amidst our trips to the mall.

It's a good read, or listen, especially on Memorial Day weekend.

"It's Our Courtroom"

2009-05-12T22:25:00.001-05:00

I’m in court this morning to waive a preliminary hearing and the deputies are telling a woman in the front row, who’s sitting with her child, that she has to leave. The judge hasn’t entered yet; the deputies are simply preparing for this case, in which a 19-year old Elkhorn, NE kid is charged with killing his father after the father had an affair with the son’s girlfriend.

The details of the alleged crime, which have run in the paper for days, are going to be ugly and I hear the deputies talking about the woman not being able to stay in court with her kids. So I say, not to them but to another attorney, “They can’t make her leave, not just for bringing her kids into court.” The deputy standing closest to me turn to me and says, “Yes we can, it’s our courtroom.” I have to do a two-minute prelim waiver, have to then go to the jail to meet with both a new and a new client and then have to rush back to the office to write a brief, so I don’t have the time nor the interest in debating with this guy who thinks the courtroom belongs to him and his friends who carry guns.

But think about the implications of this scenario. The deputies decide, without asking the judge, that kids should have to leave “their courtroom” since the testimony might not be appropriate. They don’t bother to check the law, the court rules or even check with the judge; they just decide she can’t stay.

I didn’t intervene, like I probably should have, and the woman doesn’t seem particulary bothered. I decide that I have “no dog in that fight” and let it go. But the implications, and the raw display of power, bug me. So I check the Court Rule, § 6-201, which says,

as a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party's right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.

I’ll find the judge tomorrow and tell her the story, so she knows that the courtroom she presides over was partially “cleaned out” before she came in, and that the deputies didn’t feel the need to consult with her before they decided who could stay or go. I won’t mention names, or get anyone in trouble, but want to make sure the guys with guns know they don’t get to control the courtroom, or disregard its rules without a consequence.

The Smell Test

2009-05-11T22:54:00.004-05:00

I read a police report the other day in which a search warrant was procured after an investigator allegedly “smelled” raw marijuana when his allergies flared up after he entered a house. Another time, in misdemeanor DUI case, the judge denied the motion to suppress I filed after a cop smelled marijuana while sitting at a stop light and my client cruised through the green light with the window rolled down. When he denied the motion, after I argued the impossibility of such “probable cause,” he commented that I must not have been around pot very much. (How was I supposed to answer that question? Maybe he was just mad at me for asking the cop if he drove, Ace Ventura-style, with his head out the window?)

But now the Eighth Circuit has opened the door (window?) to even better smelling techniques on the part of officers by approving a warrantless search of a home after officers (1) received an anonymous tip that meth was being manufactured in the home and (2) smelled an odor consistent with meth manufacturing:

In this case, the officers had probable cause to believe methamphetamine was being manufactured in Clarke’s home. The officers received an anonymous tip that methamphetamine manufacturing was occurring. Upon arrival, Officer Groat smelled an odor which, based on his training and extensive experience, he recognized as consistent with methamphetamine manufacturing . . . Exigent circumstances also existed. Because the officers had probable cause to believe methamphetamine was being produced in Clarke’s home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area.

Who needs a drug dog when the officer’s own allergies “alert” in the presence of pot? Who needs a warrant to search a home when you can simply claim to have smelled "chemicals" consistent with meth production?

Who needs the Fourth Amendment?

Quotes Worth Reading: Torture Edition

2009-04-26T21:11:00.002-05:00

I just watched a You Tube video in which Pat Buchanon, who was debating with Jonathan Turley and Chris Matthews about whether prosecution of Bush administration officials was warranted, made this astounding statement in support of his position that torture, although against the law, was nonetheless proper:

"There's a higher moral law here, that's what Dr. King was all about."

After that, it's refreshing to read Frank Rich's perspective on this issue in the New York Times this morning:

Five years after the Abu Ghraib revelations, we must acknowledge that our government methodically authorized torture and lied about it. But we also must contemplate the possibility that it did so not just out of a sincere, if criminally misguided, desire to “protect” us but also to promote an unnecessary and catastrophic war. Instead of saving us from “another 9/11,” torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda. The lying about Iraq remains the original sin from which flows much of the Bush White House’s illegality.
. . .
President Obama can talk all he wants about not looking back, but this grotesque past is bigger than even he is. It won’t vanish into a memory hole any more than Andersonville, World War II internment camps or My Lai. The White House, Congress and politicians of both parties should get out of the way. We don’t need another commission. We don’t need any Capitol Hill witch hunts. What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.

Another seemingly similar quote came from Newsweek's Jonathan Alter, who, when appearing on Countdown last week to discuss whether officials should be prosecuted for sanctioning torture, called out Dick Cheney:

And what's so fascinating is that Dick Cheney stands almost alone. You don't see former president Bush out there pursuing this. You don't see Condi Rice or Domn Rumsfeld or others. It's the former vice president who is becoming a forlorn and I think soon to be further disgraced figure.

As Digby pointed out, however, Jonathan forgot what he was saying back in 2001 when he wrote:

In this autumn of anger, even a liberal can find his thoughts turning to... torture. OK, not cattle prods or rubber hoses, at least not here in the United States, but something to jump-start the stalled investigation of the greatest crime in American history. Right now, four key hijacking suspects aren't talking at all.

Couldn't we at least subject them to psychological torture, like tapes of dying rabbits or high-decibel rap? (The military has done that in Panama and elsewhere.) How about truth serum, administered with a mandatory IV? Or deportation to Saudi Arabia, land of beheadings? (As the frustrated FBI has been threatening.) Some people still argue that we needn't rethink any of our old assumptions about law enforcement, but they're hopelessly "Sept. 10"--living in a country that no longer exists.

So from media hypocrisy to media courage, we go to my second favorite quote of the week, from, of all places, Fox News. Shepard Smith said, during a debate with Judith Miller (yeah, that Judy Miller):

"We are America, we don't torture! And the moment that is not the case, I want off the train! This government is of, by, and for the people -- that means it's mine....
"They better not do it," he said. "If we are going to be Ronald Reagan's Shining City on the Hill, we don't get to torture. We don't do it."

Will he keep his job? If they were looking for a reason to fire him after that statement, he gave them one shortly thereafter when he spoke out during Fox News online show, The Strategy Room. After the debate was framed in terms of whether torture works, Shep had had enough and said:

"We are America!" he shouted, slamming his hand on the table. "I don't give a rat's ass if it helps. We are AMERICA! We do not fucking torture!!"

The worst quote of the week, and the one that criminal defense lawyers should consider quoting from at sentencing, comes from the WaPo's David Broder, who said, when writing of the call for prosecuting torture enablers:

But now Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps -- or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability -- and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

As the Monty Python character once remarked, "This is supposed to be a happy occasion! Let's not bicker and argue about who killed [tortured?] who."

First Improv Class

2009-04-19T21:25:00.002-05:00

I haven't blogged much lately, but plan to get "back on the horse" soon. My wife, who works in banking, needed one more class to finish her Masters, which has meant a busy semester for both of us, especially her. She finishes in about ten days and walks across the stage at Drake University in early May. That was one reason but I also fell behind in the administrative side of the practice of law and have been using my non-work time to catch up on billing.

But I did something this year that I've wanted to do for a long time. I signed up for an Improv class. Don Fiedler brought many of these techniques to NCDC and his stories about using these techniques in trial, and even before the Eighth Circuit, piqued my interest. Then, getting the chance to work with the great Josh Karton at TLC taught me how much actors have to teach lawyers. Finally, this post by Mark Bennett prompted me to buy the book and finally take the plunge.

Last Tuesday, at our first class, I felt a little like Michael Scott at his Improv Class, hoping not to be the "old guy" who nobody wanted to hang out with afterward and whose improv revealed more issues than laughs.

But I loved it. What was amazing was that the best things happened when I didn't have time to think. When I tried to be funny, I wasn't, but when I didn't try, it was not only fun for me but (at least slightly) funny for the class.

I was impressed by the way the instructor listened and wonder if doing improv helps improve listening skills, which Gerry Spence describes as one of the most important skills a trial lawyer can learn.

I'm not quitting my day job and am glad it's only a small class. "Whose Line" will have to wait a few years, I guess. But I can't wait for the next class and hope that I can use it in court, if nothing else but to make work more playful, and hopefully more effective. I'll keep you posted.

`Win-at-all-cost' behavior

2009-04-11T07:45:00.002-05:00

From today's Miami Herald:

Accusing federal prosecutors of knowingly and repeatedly violating ethical guidelines in a high-profile narcotics trial, a Miami federal judge Thursday reprimanded multiple assistant U.S. attorneys who took part in the case -- and fined the federal government more than $600,000.

While prosecuting Shaygan, the U.S. attorney's office began a secret, undisclosed side investigation of Shaygan's legal team, citing a suspicion of witness tampering on the part of the defense.

No evidence surfaced that the defense team was manipulating witnesses. On the contrary, defense attorneys rejected bribery invitations floated on tape from government informants...

Prosecutors later called the same informants to the stand as key witnesses in their case against Shaygan, while saying nothing of the recordings. The government falsely introduced those informants -- former patients of the doctor -- as impartial, neutral witnesses.

Jurors, and the judge presiding over the case, found out about the tape recordings by accident, when one of the informants blurted out their existence while testifying.

Wouldn't you have loved to have seen the look on the prosecutor when the snitch blurted out the existence of the tapes and implicated the prosecution? Talk about being "hoisted with your own petard."

On a related note, yesterday Attorney General Eric Holder "told assistant US attorneys for the District of Columbia that they must respond to negative perceptions of federal prosecutors by doing "the right thing."

"Your job as assistant US attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing. Anybody who asks you to do something other than that is to be ignored. " Any policy that is at tension with that is to be questioned and brought to my attention. And I mean that."

A nice idea. However, as I frequently tell my clients, judges are going to believe their eyes and not their ears so the question is whether Holder's words will truly change actions, and stop tape recordings of defense lawyers conversations.

Greatest Generation

2009-03-23T21:17:00.005-05:00

My wife lost her aunt yesterday and found about it today. I knew it would hit her hard as Marsha had been there for her during rough times growing up. Her uncle is a former County Sheriff in a small Nebraska county and lost his wife of nearly 50 years yesterday.

I'd known that his wife, Marsha, had married "Uncle Wilbur" after he lost his wife suddenly in the early 1960's. I also knew that the loss had left him with young kids while he was working as a sheriff. But tonight, googling their names for information, I ran across the story of how my wife's uncle lost his first wife: (Scroll down to "SHERIFF GEWECKE: Murders and Threats")

On January 7, 1960 a local intoxicated man shot into the home of a neighbor of Sheriff Gewecke, thinking it was the Sheriff's home. "The next evening I was out following some leads on the shooting and the man called my wife and informed her that he had killed me, and was coming to our house to kill her and the three kids, "Gewecke said." He returned home to find his wife lying dead of a heart attack in the hallway and the phone torn off the wall.

It was learned later that the man had been trying to shoot the Sheriff's house the night before but got the wrong one. So when his wife answered the phone the next night, alone with three kids, she had to know that these words weren't an empty threat. When she heard that he'd killed her husband, and believed it, it was more than her heart could take.

As we read a little more, we also stumbled across this article about this same uncle and his first wife:

After the war was over, Gewecke was at an airbase in Arizona watching over airplanes that had returned from war. He spotted an airplane with the name Enola Gay and posed for a picture next to it to send home to his first wife, Linola Faye, because of the name similarities. He didn’t find out until after he was discharged that the plane he stood next to was the one that dropped the first atomic bomb

.

The same article, from last November, describes my wife's Uncle Wilbur's excitement at being selected to fly to Washington DC to view the World War II memorial as part of the Heartland Honor Flight of Omaha:

Wilbur R. Gewecke, 86, and John E. Dier, 87, served in the same war, worked together while county attorney and county sheriff, consider themselves friends, and live just a few blocks away from each other. Now, the two will share one more experience as they fly to Washington, D.C., to view the National World War II Memorial. The World War II veterans will fly to Washington Wednesday as part of the Heartland Honor Flight of Omaha. “I just can’t imagine that I was selected,” Gewecke said. “I think it’s a wonderful thing.”

The story just gets better and reminds me how important it is to simply talk to people if nothing else to hear the amazing stories they might have never been asked about. In fact, each time I hear an NPR story from "Story Corps" I vow to ask "Uncle Wilbur" about the time he survived an airplane crash. I'd heard it "second hand" but never asked him. How amazing that his likely response would be, "Which one?" As the article continues:

"As an in-flight mechanic in charge of making sure that Norden bombsight equipment was working before it went overseas, Gewecke crisscrossed the country working on equipment, transporting aircraft, and training others. He was in five airplane crashes."

When asked about his experience in the Army, my wife's uncle Wilbur avoided the usual cliches and revealed a quick wit, especially for an 86-year old:

“I had a million dollars of experience while I was in the Army, and when they discharged me, I didn’t want a penny more,” Gewecke said.

"All Four of Them"

2009-03-04T21:25:00.003-06:00

I've been reading the newly-released OLC memos and spending a lot of time at Emptywheel's site lately, commenting rather than blogging. I highly recommend Emptywheel's posts on the Al-Haramain case as well as the many comments, including some amazing descriptions in the comments by some of the lawyers involved in that case.

So, after a few hours spent reading John Yoo's twisted legal logic and realizing the truth of Scott Horton's description that "in the period from late 2001-January 19, 2009, this country was a dictatorship," it was nice to find this article in the news today:

"First daughters Malia and Sasha Obama got a big surprise after school Wednesday: a brand-new swing set. They squealed with delight upon seeing it, a spokeswoman for the first lady said. President Barack Obama and his wife, Michelle, went to work while the girls were at school, having the set installed on the south grounds of the White House within sight of the Oval Office, where their father spends plenty of time."

But here's my favorite quote: ""They ran right for it. They were really, really excited. All four of them," McCormick Lelyveld said.

"We're All Gonna Die"

2009-03-01T11:39:00.002-06:00

That's the name of this exhibit by Simon Høgsberg. From a link at the Daily Dish, the work was "shot from a bridge overlooking a railroad platform in Berlin in the summer of 2007. 178 people have been captured in this impressive 100 meter wide image."

What's amazing is the way you can scroll across the images of 178 people and the way it captures their moods. I also loved the contrast between the (mostly) "happy" images that were captured and the title. It really has to be seen to be believed.

Invoked the "What Geneva Conventions?" Defense Lately?

2009-02-28T07:50:00.005-06:00

Last night I finally got around to watching "Torturing Democracy," a documentary that appeared recently, albeit slowly and controversially on PBS stations after the election.

It was shocking and I highly recommend it, especially in light of yesterday's news that the Court of Appeals for the Ninth Circuit has rejected the Bush and now Obama Administration's position that the case could not go forward because of the threat of "State Secrets" being released. Glenn Greenwald and Marcy Wheeler both describe the background of that case and Monday should be an interesting day as Judge Vaughn Walker, assuming that an appeal is not filed by the Obama administration with the Supreme Court, will likely rule that the wiretap of communications between Al-Haramain (a now dissolved Islamic fund raising organization) and its Oregon lawyers was in clear violation of the law. As Marcy notes:

Barring some last minute stay from SCOTUS, Walker can come back Monday morning, look at a wiretap log of US persons not approved by FISA, and rule that that wiretap was illegal. I will, quite literally, be holding my breath on Monday, but Walker may well beat any games from Obama.

I encourage everyone to watch the documentary. I plan on watching it again since it was late when I watched it and, with Sam Adams and a bowl of popcorn beside me, I dozed off a few times as it was a long week.

But there was one line from the narrator that stood out. In a documentary that features interviews with many criminal defense lawyers who are standing up against the outrageous policies practiced at Gitmo and elsewhere, wouldn't you think a little respect for criminal defense attorneys would be in order?

While I'm never truly surprised when people criticize criminal defense attorneys, I didn't expect it in the middle of a PBS doc about how the Bush administration worked the "dark side" and ultimately ended up not only ignoring but blatantly violating the Geneva Conventions, international law and federal statutes that criminalize torture.

Here's the exchange that woke me up:

NARRATOR: In Washington, Secretary of State Colin Powell – the most experienced military man among the President’s top advisers – stepped up his defense of Geneva’s half century of war-fighting rules.

RICHARD ARMITAGE: We were trying to wrestle with how to fight both an enemy and
an idea, and I think came up with a wrongheaded solution - opting out of Geneva. We,
after all, want our soldiers, should they be unfortunate enough to be captured, to be
treated in a proper way. And yet, we weren't willing to afford that to others. That seems a little counter-intuitive to me. It did at the time, and it does now.

NARRATOR: Before the Secretary of State could make his case to the President
personally, he was undermined by the Vice President. In a blunt memo written by
Cheney’s counsel, David Addington – but delivered by White House Counsel Alberto
Gonzales – Bush was advised that the war on terror: “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners”.

NARRATOR: And in an argument that could have been written by a criminal defense
lawyer, the President was told that opting out of the Geneva Conventions:
“substantially reduces the threat of domestic criminal prosecution under the War
Crimes Act.”

RICHARD ARMITAGE: If you were twisting yourselves into knots because you're
fearful that you may be avoiding some war crimes, then you're probably tripping too
closely to the edge.

Let's break down that sequence:
1. Two former military men, Powell and Armitage, fought against violating Geneva.
2. Cheney and Addington, via Gonzo, undercut these former military men, telling W that Geneva is not only "quaint" but inapplicable.
3. Bush is further told that claiming Geneva does not apply "reduces the threat" that anyone could be prosecuted for war crimes for treatment of detainees.
4. This is the sort of argument that "criminal defense lawyers make."

Perhaps the point the writers are trying to make is that this laughable justification is the role criminal defense lawyers often find themselves in, trying to convince a fact finder that black is white, but it seemed an odd place to imply that "criminal defense lawyers" are similar to Addington, Cheney and former judge and Attorney General Alberto Gonzales.

The documentary goes on to describe how important John Yoo's memos were to these justifications as they allowed the other players to operate with a stamp of approval granted by a prosecutor, as Yoo was a Deputy Attorney General at the time.

It's possible that the authors were implying that the parties' criminal defense lawyers might later be in a terrible position in trying to justify these actions and might be forced to resort to arguing that the President's decision to "opt out" of Geneva meant that war crimes prosecutions were inappropriate against those who carried out the President's orders.

But, considering that they were describing Cheney, Addington, Yoo and Gonzales' laughable position that the President could simply ignore the Geneva Conventions and that doing so could also protect Americans from possible prosecutions at the Hague, it seemed a ridiculous time to imply that "criminal defense lawyers" are the typical proponents of these positions.

Had any luck in court lately advocating that your clients can't be prosecuted because the Unitary Executive retains that Constitutional Authority to render international treaties void?

What, that isn't what we do?

Equality Before the Doctor?

2009-02-16T22:05:00.003-06:00

NPR reported yesterday that Justice Ginsburg's chances of surviving pancreatic cancer are much better than most of those who suffer from it because doctors ignored an initial test that showed a benign tumor and pushed on to discover cancer in her pancreas. I thought good for them. I also wondered if they would they have done such a test if under pressure from an HMO, if they were only receiving medicare payments, if they were performing the same test on you or me?

Hearing about pancreatic cancer again made me remember that last year, the criminal defense bar lost a true champion, Don Fiedler, to it. He dedicated his life to criminal defense, teaching each year at the National Criminal Defense College and sponsoring scholarships for young lawyers to attend the college in Macon, GA each summer. I wouldn't have gotten there if not for his help and I doubt that anyone from Nebraska would have done so either. (I don't know how many NCDC grads now live here, but I think it's close to 20!)

I know it's useless to ask such questions, but hearing the report about Justice Ginsburg, made me wonder if such rigorous tests would have made a difference for Don. I also wondered if any of Don's clients, or mine, would have had access to basic tests for cancer? Or how many have access to health insurance at all?

Atticus Finch said that "We know all men are not created equal in the sense some people would have us believe--some people are smarter than others.. But there is one way in this country in which all men are created equal--there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court."

But those who sit on the Court, under the banner of equality under the law, enjoy access to elite-level health care while millions lack access to the most basic kind. Sadly, an old phrase rings true, at least among industrialized countries: Only in America.

It's terribly sad that, for Justice Ginsburg, despite the "luck" of an early diagnosis, has only increased her chance of surviving it to around 50%. Still, it's even more sad to consider how many people's chances of surviving it are increased because they have no health insurance and no chance to speak to a doctor until their symptoms bring them into the emergency room, and "treatment" becomes nothing but a pain killer.

You say you want a revolution?

2009-02-14T20:42:00.002-06:00

Here's one way to get there. Billmon at Daily Kos, as pointed out by Glenn Greenwald, asks a very interesting question about these two headlines from the Washington Post on Thursday:

1. Lawmakers' Goal to Cap Executive Pay Meets Resistance

"Congressional efforts to impose stringent restrictions on executive compensation [at government-subsidized banks] appeared to be evaporating yesterday as House and Senate negotiators worked to fine-tune the compromise stimulus bill."

2. Employers Fighting Unemployment Benefits

"It's hard enough to lose a job. But for a growing proportion of U.S. workers, the troubles really set in when they apply for unemployment benefits.

More than a quarter of people applying for such claims have their rights to the benefit challenged as employers increasingly act to block payouts to former workers."

After noticing the irony of these two headlines, Billmon understandably asks:

Someone please explain to me why we haven't had a revolution in this country yet, because I don't fully understand it -- given that our political and business elites both seem to have a death wish bigger than Marie Antoinette's.

Feds to Sheriff Joe: "Law Enforcement ... not a reality show"

2009-02-14T08:17:00.002-06:00

I read a lot of good criminal law blawgs and rarely miss anything by Emptywheel, who writes at Firedoglake. Today, Marcy Wheeler's occasional co-blogger, Bmaz, writes about Maricopa County, Arizona (Phoenix) Sheriff Joe Arpaio:

You have probably heard of the shamelessly self professed "Toughest Sheriff in America", Maricopa County Arizona Sheriff Joe Arpaio. For years he has been making a PR spectacle of himself, all the while running an unconstitutionally deplorable jail system, letting inmates die under tortuous conditions, and violating the civil rights and liberties of everybody in sight, especially minorities. Today, the House Judiciary Committee made public a critical and public step to rein in the Most Abusive Sheriff In America.

Bmaz goes on to quote from a letter sent from the House Judiciary Committee to former Arizona Gov. Janet Napolitano and Attorney General Eric Holder:

Sheriff Arpaio has repeatedly demonstrated disregard for the rights of Hispanics in the Phoenix metropolitan area. Under the guise of immigration enforcement, his staff has conducted raids in residential neighborhoods in a manner condemned by the community as racial profiling. On February 4, 2009, Arpaio invited the media to view the transfer of immigrant detainees to a segregated area of his "tent city" jail, subjecting the detainees to public display and "ritual humiliation." Persistent actions such as these have resulted in numerous lawsuits; while Arpaio spends time and energy on publicity and his reality television show, "Smile… You're Under Arrest!", Maricopa County has paid millions of dollars in settlements involving dead or injured inmates.
...
It is time for the federal government to step in and uphold the rule of law in this country, even in Maricopa County."

"Law enforcement is not a game or a reality show, it is a public trust," said Scott. "There is no excuse for callous indifference to the rights of the residents of Arizona, whether in their neighborhoods or as pretrial detainees."

This isn't a knock against law enforcement in general, just against those who enter the field and exploit it to expand their own images, egos and build possible Senate runs while using the Constitution to blaze this trail. As Bmaz describes Arpaio:

Joe Arpaio is a two bit carnival barker and huckster, not a dedicated law enforcement official. The opportunistic man came into office running against a fellow Republican and incumbent Maricopa County Sheriff, Tom Agnos, by bad mouthing Agnos and arguing that the entire Maricopa County Sheriff's Department needed to be cleaned up. In fact, Arpaio's winning campaign was predicated upon his willingness to mock the very department he was running to lead and promise to expose the dirty laundry of Agnos and the Sheriff's Department for its involvement in the infamous Buddhist Temple Murder case (link is a fascinating three part story), a seminal case in textbooks on coerced confessions (from the fact that four separate coerced false confessions were obtained to a single crime). Arpaio promised to restore honor to the department, and also swore he would serve only one term in office. Five terms and seventeen years later, Arpaio has failed miserably on both promises.

As Bmaz later points out, Arpaio has reasons to keep pointing to his supposed positive effect in criminal court: to distract from the $42 million plus civil verdicts that have been levied against the Sheriff's Department since he took office.

How does that figure and the number of lawsuits generated against Arpaio's Department compare to other municipalities? Bmaz quotes from this article which concludes:

"New York City, Los Angeles, Chicago, and Houston, for example, collectively housed more than 61,000 inmates per day last year. From 2004 through November of this year, these same county jails had a combined 43 prison-conditions lawsuits filed against them in federal courts.

In the very same three-year time frame, despite housing a mere 9,200 prisoners per day, Sheriff Arpaio was the target of a staggering 2,150 lawsuits in U.S. District Court and hundreds more in Maricopa County courts.

With a fraction of the inmate population, Arpaio has had 50 times as many lawsuits as the New York, Los Angeles, Chicago, and Houston jail systems combined."

From Cufflinks to Handcuffs

2009-02-13T18:00:00.002-06:00

I’ve written before about picking my wife up after work in the summer, but today, with snow falling hard, I picked her up early to avoid a messy commute as a big snowstorm was just beginning to push through town. While parked outside of the large bank building where she works, directly behind an empty police car, I saw a sight that I’m used to seeing every day but which seemed out of place before a bank.

An executive-looking man, probably mid 40’s to 50, with the trademark blue banker suit and red tie, was escorted out of the building, handcuffed, coatless, surrounded by three uniformed officers, as the snow flakes melted against their faces and gathered on their clothes. They paused for a second in front of me, debating about whether to put the guy in the squadcar on the street or the sidewalk side. The guy looked up at me pathetically, wearily, appearing on the verge of tears.

I have no idea who he was and why he has being led out of the bank this way. As much as I’ve occasionally griped that I wished the law applied more equally toward those who work in towers compared to those who wear bluer collars, it wasn’t an easy sight to behold as the guy looked more worn down than my clients typically did as they dragged him out of his job and into the police car.

I’ve been reading Laurence Gonzales’ Everyday Survival off and on and, though it’s not as good as Deep Survival, it’s worth reading. In fact, the last time I wrote about waiting outside the bank watching window washers “play” above me, it brought to mind Gonzales’ descriptions of risk-takers learning to laugh in the middle of risk as a way to concentrate and, thus, survive. (thanks to Mark Bennett for telling me about this great book)

Watching three police officers escort this man into their car, his hands cuffed behind his back, made me think of the way Gonzales described one of the secondary purposes of handcuffing as shaming the arrestee by taking away the appendage that represents our humanity, separates us from animals, the thing we extend to show friendship in offering a handshake.

The description seemed a bit of a stretch when I read it, and I know a lot of police officers would disagree with it, but seeing this banker’s hands locked behind his back as one officer pushed his head down, ducking him into the car revealed that shame and helplessness were obvious and that officer safety wasn’t an issue with an aging banker with three younger cops. In short, the picture was worth a thousand words and brought home the shame that comes when you’re pulled out of your tower with your hands behind your back and driven away with the lights flashing.

I wondered if he’d just been laid off and had “lost it” when he heard the news or if he was charged with embezzlement, or something more along the lines of the crimes I usually defended against.

I wondered if this sight will become more common before we reach the end of this financial crisis, a white-collared executive having to duck into a black and white “police interceptor.”

So bad it's good

2009-02-13T08:38:00.004-06:00

From this morning's email, an example of a real "LMAO" Story:

"Every year, English teachers from across the USA can submit their collections of actual analogies and metaphors found in high school essays in order to have them published and sent out for the amusement of other teachers across the country. Recent winners :

1. Her face was a perfect oval, like a circle that had its two sides gently compressed by a Thigh Master.

2. His thoughts tumbled around inside his head, making and breaking alliances like underpants in a dryer without Cling Free.

3. He spoke with the kind of wisdom that can only come from experience, like a guy who goes blind because he looked at a solar eclipse without one of those boxes with a pinhole in it and now goes around the country speaking at high schools about the dangers of looking at a solar eclipse without one of those boxes with a pinhole in it.

4. She grew on him like she was a colony of E. Coli, and he was
room-temperature Canadian beef.

5. She had a deep, throaty, genuine laugh, like the sound a dog makes just before it throws up.

6. He was deeply in love. When she spoke, he thought he heard bells, as if she were a garbage truck backing up.

7. He was as tall as a six-foot, three-inch tree.

8. The revelation that his marriage of 30 years had disintegrated because of his wife's infidelity came as a rude shock, like a surcharge at a formerly surcharge-free ATM machine.

9. The little boat gently drifted across the pond exactly the way a bowling ball wouldn't.

10. From the attic came an unearthly howl. The whole scene had an eerie, surreal quality, like when you're on vacation in another city and Jeopardy comes on at 7:00 p.m. instead of 7:30.

11. Her hair glistened in the rain like a nose hair after a sneeze.

12. Long separated by cruel fate, the star-crossed lovers raced across the grassy field toward each other like two freight trains, one having left Cleveland at 6:36 p.m. traveling west at 55 mph, the other from Topeka at 4:19 p.m. traveling east at a speed of 35 mph.

13. They lived in a typical suburban neighborhood with picket fences that resembled Nancy Kerrigan's teeth.

14. John and Mary had never met. They were like two hummingbirds who had also never met.

15. He fell for her like his heart was a mob informant, and she was the East River .

16. Even in his last years, Granddad had a mind like a steel trap, only one that had been left out so long, it had rusted shut.

17. The plan was simple, like my brother-in-law Phil. But unlike Phil, this plan just might work.

18. The young fighter had a hungry look, the kind you get from not eating for a while.

19. He was as lame as a duck. Not the metaphorical lame duck, either, but a real duck that was actually lame, maybe from stepping on a land mine or something.

20. Her vocabulary was as bad as, like, whatever."

The Packing Staple

2009-02-12T22:47:00.002-06:00

When I was in college I worked as a waiter, then later “moved up” to being a bartender which was a lot less demanding but meant staying up a lot later and missing out on a lot of mornings. Sometimes, as a criminal defense lawyer, I remember those days and feel like I use the skills I learned being a bartender more than those I learned in law school.

A couple weeks ago, as I argued before the Nebraska Court of Appeals, I remembered something that happened while I was waiting on a couple lawyers at lunch, probably twenty years ago. Why did being at the Court of Appeals make me remember the story? We’ll get to that later.

So it’s twenty years ago and I walk up to a table where a couple lawyer-looking guys sit. I tell them the soup of the day, the special and then recognize one. I ask if he’s Wes Mues, he says yes and I tell him I’m John’s son. He says, “Yeah, I remember you, how’s your dad?” We’re in a town of about 20,000 and my dad is a lawyer here too so, even though he might not recognize me, he knows my dad and likely remembers me as the kid, now mostly grown up, who used to cut through the alley by his house every day in the summer on my way to my best friends’ house.

I bring them their ice teas, take their lunch orders, and drop off Mr. Mues’ cup of minestrone, the soup de jour. I leave them alone for a minute and, when I walk back by, they wave, trying to get my attention. I walk up to the table, see that they’re laughing slightly and the other lawyer seems to be encouraging Wes to tell me something. He finally asks, jokingly, if the soup is supposed to come with staples. They’re not being arrogant or messing with their waiter, they’re just jokingly letting me know that the food isn’t like it was supposed to be. I’m confused, wondering what he means by staples and see Mr. Mues reach down to the plate that carries his soup bowl and hold up a brass-colored packing staple dripping with minestrone.

It hits me how serious this could have been and I’m suddenly impressed with the way they laughed instead of complaining, even yelling. I think of how they could have choked, or hurt their teeth or even filed a lawsuit. I apologize profusely, take the tainted soup away and find my boss, the manager. When I tell her the story, I remember the rumors about all the coke she does and start to suspect they’re true as she tells me, seeming not to even care, to “give them a free cup of soup.”

I decide, right then, that she’s incredibly stupid and to do what I know the owner would want me to do: give them a free lunch, knowing that free soup, maybe not even free lunch, won’t stop them from telling all their friends about the packing staples in the soup at the “Peppermill.” The owner has run this place well, so well that he can afford to move to California to open a new restaurant, coming back every month or so to make sure things are running smooth. It hits me that I could be fired for giving away food against the manager’s direction but I decide to take my chances with the owner if I get caught.

I bring them their steak sandwiches, first scanning for stray staples in the sides and they seem happy when I tell them lunch is on the house, telling them how sorry we are and how it’ll never happen again. I tear up the ticket, destroying the evidence that I defied the manager and hope that they don’t talk and that she isn’t paying attention, that they're not distracted by the staple and that she is, by the drugs.

A few months later I’ll realize that the staple was just the “tip of the iceberg” at this place and will take a job as a bartender for the summer, a few months shy of the legal drinking age. I’ll do that job for three years, learning to drink good booze and how to count out the bank after doing a series of Jagermeiser shots. I’ll also learn how much people change when they drink and how much money they’ll drop afterwards. Chuck Cabela will even end up asking me how much I’ll charge him for jumping out of the balcony of the poolside tropical bar I work at to land in the pool down below. I'll say “seventy-five bucks,” he’ll pay it and I’ll pocket the money, along the way subjecting the company to millions in liability to let a drunk rich kid risk his life to impress the dozens of friends he’s surrounded by each time he breaks out daddy’s credit card to go on a drinking spree.

But when you’re 21 and you can make seventy five bucks to watch an early version of “Jackass” live, you do it. At least when you're me. Later, when I decide to go to law school I read that the guy who found the staple, Wes Mues, has not only been appointed to the bench but has even made it to the Nebraska Court of Appeals. I wonder whether he’ll remember the packing staple and think of telling him how I wasn’t supposed to even give him that lunch. I think of asking him, when I end up in front of him someday, whether he remembers the Peppermill long since closed down from, you guessed it, mismanagement.

But I don’t ever get the chance to talk to him again as one day, on his way out of my hometown to a session of the Nebraska Court of Appeals, he will pull out in front of another vehicle, probably thinking about a case, and be struck in mid-turn at the height of his legal career, tragically killed almost instantly.

I read one of his opinions the other day and remember fondly how he treated me when I was his waiter, even when he found a large packing staple in his soup, never forgetting to have a sense of humor or being tempted to blame a person who was likely only the messenger and not the cause.

I remember the other lawyer, still alive, who used to snap his fingers at me when I waited on him, not even self-aware enough to see how patronizing this was or how it reflected on his profession. I vow to try to be more like Wes Mues was to me that day, quicker to laugh, slower to anger, thankful for every free lunch, no matter why it arrived. Thinking back on it makes me hopeful as the polite, driven, level-headed lawyer moved up while the finger-snapping assclown stayed put. I know, there are a lot of examples that refute this general point, but in this case the system seems to have worked.

So what’s the lesson here? I guess it’s be nice to your waiters (no matter what the experts say) and your customers too. You never know where, when or how you’ll end up facing one of them again.

"Legal Technicalities"

2009-01-24T07:57:00.003-06:00

Last Friday, the New York Times' front page, under the headline "Guantánamo Detainees? Not in My State," featured this description of criticism of Obama's plan to close Gitmo:

"One day after President Obama ordered that the military detention center at Guantánamo Bay, Cuba, be shuttered, lawmakers in Washington wrestled with the implications of bringing dozens of the 245 remaining inmates onto American soil.

Republican lawmakers, who oppose Mr. Obama’s plan, found a talking point with political appeal. They said closing Guantánamo could allow dangerous terrorists to get off on legal technicalities and be released into quiet neighborhoods across the United States. If the detainees were convicted, the Republicans continued, American prisons housing terrorism suspects could become magnets for attacks."

Describing governmental violations of the Constitution or the law as "legal technicalities" is not a new tactic, but it remains a dangerous characterization. For example, couldn't we similarly characterize the Constitutional problems of Brown v. Mississippi as "legal technicalities?" Couldn't we frame the issue this case presented as "whether a convicted murderer's confession can be used against them in court after the police used "enhanced interrogation techniques" against them?"

In that case, the "enhanced interrogation techniques" (or the "legal technicalities") at issue were whether the State of Mississippi could introduce "confessions" that were signed only after the defendants were whipped and beaten by the police:

On 30 March 1934 Raymond Stewart, a white farmer from Mississippi, was murdered. Law enforcement authorities thought they knew the perpetrator, and arrested a Mr. Ellington, a local man of African descent. They also detained Ed Brown and Henry Shields, two other African American men who would become petitioners in this case. Ellington was taken to the scene of the murder and asked to confess to the crime, but he professed his innocence.

Upon hearing this, a group of white men who had gathered at the crime scene joined the police to encourage Ellington to confess. They threw a rope over a nearby tree limb, made a noose,seized Ellington, and hung him until his neck bore distinct rope marks that lasted for several days. After being let down Ellington still refused to confess, whereupon he was hung once again. When Ellington continued to maintain his innocence after his second hanging, he was savagely whipped by Deputy Sheriff Dial. Ellington still would not confess, and the mob allowed him to return home.

Brown and Shields were taken to the county jail and detained overnight. The following morning Dial and several white citizens returned to Ellington'shome and arrested him. They then took him to the county jail after first making a detour through Alabama. While in Alabama, Dial and his colleagues whipped Ellington yet again, whereupon he agreed at last to confess to whatever his tormentors accused him.

On the night of 1 April 1934 deputy Dial and a number of white citizens returned to the county jail. Shields and Brown were forced to disrobe and lie over chairs. They were then beaten with a leather strap bearing metal buckles. During the beating deputy Dial made the men understand that, if they would confess involvement in Stewart's murder, the whipping would stop. Eventually both men confessed, and agreed to every detail of the scenario for the murder concocted by the local police and the mob.

Wasting no time, the authorities convened a grand jury comprising two sheriffs and eight white citizens to hear the "free and voluntary" confessions of Brown, Ellington, and Shields to the murder of Stewart. The suspects duly confessed. Although the accused still bore many visible marks of their ordeals and many of those present had knowledge of their treatment, three of the men watching this charade agreed to testify to the voluntary nature of the confessions in the upcoming trial.

The men's appellate counsel had the nerve to disagree with the Mississippi Supreme Court which held that the failure to the Defendants' trial counsel to move to suppress the "confessions" was, well, tough luck.

The U.S. Supreme Court unanimously reversed, holding that the Due Process Clause prohibited the government from utilizing testimony procured through torture. In short, a "legal technicality" was created that said you couldn't beat a confession out of a suspect and use it against them in court in a civilized nation.

The issue for Guantanamo Bay detainees is likely similar: whether confessions procured through "enhanced interrogation" techniques, such as waterboarding, can be used by the government (which intentionally held them offshore in an attempt to prevent them from utilizing the protections inherent in U.S. law) against them at trial.

So when you hear the term "legal technicality" used to describe any person's defense, remember that another description for this is likely "the Constitution," the document our political leaders swear an oath to support but don't always carry out.

Things I Wish I Would Have Done Right Away When I Started My Own Practice

2009-01-18T20:53:00.002-06:00

1. Bought a Mac
 - Mark Bennett told me to, but I didn’t listen, until my Lenovo broke down twice and, after doing without it for two one-week stretches, I realized I couldn’t afford the “savings” the windows-based machines (Vista) seemed to promise at first. Best business move ever.  

2. Gotten a Good Billing Program
 - I stayed caught up on billing for most of the first year, but when I got busier I fell behind. A good billing program would have made staying caught up a breeze. This is another great reason to buy a Mac: I found the billing software much cheaper than what was available for the PC. (I chose Billings) 

3. Gotten a Good Accounting Program
 - I am trying to implement Quickbooks on a PC I have at home. I thought saving the $200 was worth keeping this separate from my macbook, (my brother gave me a copy) but now wished I would have sprung for the Mac version. I had plans to come home and input the data every day, but have learned that the “distance” between my office and the PC in my basement is too far to be workable. Besides, who wants to go down to the dark basement after a long day for data input!  

4. Stayed Caught Up on Billing 
- As I said before, I stayed caught up for awhile, but haven’t done well lately. The problem is that so many tasks are urgent that I tend to take care of my own tasks last. For example, it’s hard to tell a client you haven’t worked on their case because you needed to get caught up on billing, so I put it off until “later” which always seems like next week but ends up being next month.  

5. Networked With More Lawyers for New Clients
 - Jay Foonberg is right: Lawyers brought me a lot of clients. I wish I would have sent announcements to local lawyers about starting a practice. It likely would have meant those early months wouldn’t have been so “lean.”  

6. Not Taken Business I Had No Business Doing
 - I took a lot of cases “for the experience” and ended up spending a lot of time in a “learning curve.” For example, if someone would call me about a will, I would quote them a low price and think I would learn a valuable lesson. But by the time I became “refamiliarized” with statutes and recreated the forms, I ended up regretting the decision to step so far out of my “element.” Next time, I think I’ll refer them to an attorney with expertise and hope for a referral in return.  

7. Gotten More Money Upfront 
- I heard this advice thousands of times, but felt like I had to ignore it to stay busy. But a lot of promises, even from people I thought would surely pay, didn’t come through, even after good resolutions to their cases.  

8. Set Up a Meeting with Other Solos
 - I should have set up a set time for other solos to meet for lunch to share “hard lessons.” I might not be writing this if I had! I also probably should have taken some people out for lunch, bought their lunch and heard the lessons they learned the hard way.  

9. Implemented G.T.D. Sooner
 - I love David Allen's system, but need to do it much better. I heard about it from several people, but was finally convinced to take the plunge after James Fallows wrote about being assigned to write about it and then getting hooked. I bought the book, made some big changes to the way I organize things, but wish I would have done it sooner and better! Just this weekend I reorganized my basement and created better “buckets” and updated my filing system. I even used a hipster PDA for awhile before going with a paper-based system that works well for me, as long as I stay true to the process! 

10. Bought an Ipod / Iphone Sooner
 - I used an outlook calendar at first, but sometimes forgot to update it when I would get a court date when I was away from my computer. After missing a court date, and making a judge who I was relying on for court appointments understandably upset, I had to get a reliable calendar, especially when I started getting busy and needing to have access to my calendar everywhere. I bought an Ipod touch which syncs to my Ical through the cloud on Mobile Me and I love it. If I don’t have my Macbook, I can pull up my calendar from my ipod. I like having a separate cell phone rather than an Iphone as there are a lot of times I need a phone but not an ipod, such as on the weekends. I also like being able to pull up my calendar when I’m on the phone without putting it on speakerphone.

I love working for myself but learned a lot of hard lessons during my first 18 months. Looking back, I should have read Foonberg’s book three times, bought a mac right off, and made a vow to stay on a monthly schedule of billing and organization no matter what. David Allen has a saying about dealing with something when it “shows up rather than when it blows up.” I let too many things blow up when a system to process tasks would likely have given me enough time to take care of my own business without sacrificing the job I did for other people. The challenge is finding enough time, through organization, to keep clients happy and keep your own personal tasks form piling up and holding you back.

Easier said than done, but these things would have helped.

Write Responsibly

2009-01-09T22:03:00.000-06:00

This is the first blog post I wrote, way back in Nov. ’05. (I wrote two posts the first day, even leaving myself a comment to test it out.) Since I didn’t install sitemeter, I had no idea if anyone was reading it and it seemed like it was just me, tilting at windwills with only an occasional reader, likely similar to the guy flipping through the channels at midnight, I thought. .

One day, however, this guy left me a comment, demanding that I correct something I’d written. I’d heard of him and was a little surprised that he cared what I’d written between court hearings in a windowless room at the Public Defenders Office. So it was brought home to me that you never know who was reading, even if it still seemed like he just stumbled on my blog and would likely never be back.

Lately, however, I’ve learned how important it is to choose your words carefully, even if you attract about 15 readers a week. I once heard Angelina Jolie describe the way she approached playing the role of Danny Pearl’s widow, saying that she believed, to play it effectively, she had to assume that Pearl’s children would one day be watching the movie, viewing her role as if it were the way their mother acted at the time, before they were old enough to remember it. She took her “play” role very seriously, in other words.

What does that have to do with writing a blog? I thought it had nothing to do with it, but have learned otherwise lately. I attract less viewers per day on average than Angelina has kids, but sometimes it’s the quality of the reader that matters rather than the quantity. A better way of putting that is that you never know who will read your blog, so write for the reader that you have the most responsibility towards, and don’t assume that someone whose opinion truly matters won’t end up reading your words.

I’ll show you what I mean: When Don Fiedler, one of my heroes, passed away, I wrote about it here. Later, when I met his son, he told me he found my blog and enjoyed it. When he told me that, I wished I would have written with him in mind, considering the possibility that a son, in a lot of pain, would use google to find his dad’s blog and stumble across mine in the process. Later, I received a postcard from a friend of Don’s in Arizona, telling me he’d found my blog entries, thanking me for writing them. If I would have considered this type of reader, I would have written more carefully, in case I said the wrong thing in a rush.

Then a couple months ago, I wrote about another tragic death and received a comment I didn’t expect, that made me wish I'd written more carefully:

I am the mother of one of the 5 children Destiyon, he left behind from someone being careless and not knowing what they are doing to peoples lives. My son will be 2 on December 04 and will never grow up knowing what a great man his father was. He was the kind of man who knew how to make you smile even at your most angriest moments. He always told me Laura you're so much smarter than most of these woman our here. Thats when I decided to go to college and finish my degree. I will never forget you and everything I have of yours I will give to my son when he's much older including the diamond ring and necklace. Love you from the bottom of my soul.

Once again, I wished I would have considered this type of reader before I posted or at least edited more carefully. Angelina Jolie’s observations hit me once again.

But today this rule was really brought home. I may have had it in mind in fact, when I wrote a post talking about the tragedy of a suicide, “carefully” I thought, using a fake first name, no last name and no links. Even then, a family friend thanked me for the post today, leaving me wondering how they even found it. I even learned, for the first time, that the name I chose at random, “Dan,” wasn’t really random. I hope I chose my words carefully enough, that they were appropriate for a family in pain and likely searching for something to ease that pain on the internet. There’s a line from a Yeats poem that I often think of at sentencing, when a judge or a prosecutor is rushing through a decision that will effect a person’s life for decades: “Tread softly because you tread on my dreams.” They’re not my dreams, they’re my client’s, but they are dreams and they shouldn’t be rushed.

The same goes for writing blog posts about death: “Write carefully because you write about a person’s life, and your words might soon be found by his family.”

Suicide Is Painful

2009-01-07T21:43:00.001-06:00

A few weeks ago I was talking to a friend on the phone when she told me about that that the teenage daughter of one of her friends had recently committed suicide. We talked about how painful it must be for the family and turned to the subject of how painful it can be to work in the criminal field, how so many clients were caught up in alcohol and drug problems and how many lawyers were as well.

She told me something that now haunts me, saying that I should keep an eye out for people who might be going down this "road." I thought about it for a second, thought of no one, and got back to work.

Yesterday, however, the lawyer "next door" stuck her head in my office and asked me if I remembered "Dan." When I told her, "of course I do," she sat down and asked me if I'd heard, that he shot himself over the weekend.

I hadn't seen him in months and had said only a few words to him over the years, but saw him frequently in the busy County (misdemeanor) courts, mostly keeping to himself, scraping out a living, like a lot of other solo criminal defense practitioners.

There's a great/sad line in J.D. Salinger's "For Esme, With Love and Squalor" that I think of all the time that describes the author being stuck in a hospital, writing home, and listening to "the uncomradely scratching of pens" from the other patients.

Why didn't I ever strike up a conversation, invite the guy to lunch, the way a very successful criminal defense lawyer asked me today, after I told him my first Eighth Circuit argument was next week?

Who else is there who might be on the verge of something like this, who I might be overlooking? I looked up the obituary on the web today and saw that a small, private service was held, just for the man's family. I started to link to it, to show how lonely even the man's obituary read, but it didn't seem right. "Let the dead bury the dead," as Sheriff Tate says in To Kill a Mockingbird.

But don't forget to talk to the living, before it's too late.

No More Plea Bargains?

2009-01-03T08:00:00.000-06:00

When I woke up this morning and read in the Omaha World-Herald that Gage County Attorney was implementing "no more plea bargain" policy, I assumed it was another prosecutor grandstanding about being "tough on crime." But, as I frequently say to prosecutors, the truth is a little more complicated than it appeared at first glance. First, the reason for the change:

With the shadow of the "Beatrice Six" hanging over his head, Gage County Attorney Randall Ritnour announced Friday that his office would no longer offer or accept plea bargains in felony cases involving adults.

Six people were wrongfully convicted in a 1985 murder case in Beatrice, with four giving detailed statements — apparently false — confessing to their involvement in the brutal attack, rape and murder of a 68-year-old woman. Some later said they cooperated with authorities to avoid being charged with a crime that could send them to the electric chair.

The reason I'm not skeptical after reading the article? Doesn't it seem like a prosecutor who's willing to speak this frankly deserves at least a chance to demonstrate that his policy is for the benefit of the system rather than his own reelection chances?

It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn't think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.

"This prevents overcharging," Ritnour said. "You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We're going to see what we should charge people with and stick with it."

I am still very skeptical that Ritnour can make this work and drive plea bargaining out of the equation. For example, as shown in the quote below, some defendants will and should balk at the prospect of "cooperating with police and prosecutors" simply for a recommendation of lenient sentencing for a felony charge. For my clients, especially those charged with a felony for the first time, the prospect of a reduction to a misdemeanor is a significant motivator.

Before I went to law school, I worked for a company that helped ex-felons find jobs, so it was brought home to me how difficult it can be to convince an employer that the "F" on your record wasn't that serious. For most job applicants, the "F" becomes the filter that separates them from the other applicants and leaves them jobless, more likely to succomb to recidivism. Hopefully, for defense attorneys and their clients, the risk of "cooperation" (in its current definition) will be too high a price to pay when they still face an "F" on their record which could haunt them the rest of their lives.

Here's what Ritnour says that makes me skeptical, more because of knowledge about the current system than the words he chooses:

Ritnour said that if a defendant cooperates with police and prosecutors or provides testimony against a co-defendant, he will join with defense lawyers in recommending a lenient sentence, but he will not reduce charges.

I guess it depends on what Ritnour means by "cooperates with police and prosecutors." Does he mean becoming a snitch, risking ending up dead in a dumpster (as the story I heard in the P.D's office goes) or does he mean getting involved in drug treatment? The devil will be in the details.

One of the dangers of working in the "Justice System," in any role, is the potential to succomb to cynicism, to assume that any new idea will fall victim to the same old temptations and corruptions of power that taint the current system. Still, statements like this give me reason to hope that this new policy deserves a chance:

"Our point is to do the right thing, and the right thing is to charge people with the crime they actually committed, not to bounce around making deals."

There's a quote, the source of which I forget, about cross examination being the greatest engine for ferreting out the truth mankind has yet produced. The statement is true as long as the weapon is wielded effectively.

The same applies to jury trials. If Ritnour's approach is to stop overcharging and let more juries decide the outcomes of cases, I applaud his efforts. But if the abuses of the current system, such as "trial taxes," are not eliminated, this will end up being the same old wine in a new bottle.

I'm willing to give it a taste first, before I label it from a distance, however.

More on Jim Webb

2008-12-30T19:39:00.001-06:00

Yesterday I wrote about Sen. James Webb's goal of reforming the prison system in the U.S. The Washington Post article describing Webb's goal referenced a story Webb wrote for Parade magazine back in 1984:

A journalist at the time, he was working on an article about Ed Arnett, an American who had spent two years in Fuchu Prison for possession of marijuana. In a January 1984 Parade magazine piece, Webb described the harsh conditions imposed on Arnett, who had frostbite and sometimes labored in solitary confinement making paper bags.

"But, surprisingly, Arnett, home in Omaha, Neb., says he prefers Japan's legal system to ours," Webb wrote. "Why? 'Because it's fair,' he said."

The Senator's "Webbsite" has a link to the original article, entitled 'What we can learn from Japanese Prisons," which describes Arnett's experience in the Japanese legal system and, later, one of its prisons:

FUCHU PRISON, near Tokyo is home to 2500 of Japan's most hardened criminals. Ed Arnett is an alumnus who thinks of Fuchu daily. The dank, unheated buildings, the harshness of the guards' reports to their superiors, the high stone walls--these are as near to him as the scars on his legs, from the frostbite he picked up in his Fuchu cell.

"I didn't know I could still cry until I went to prison in Japan," says Arnett, convicted in 1979 for possession of two kilograms of marijuana. "I wouldn't put that experience on anybody."

How does Arnett rate this harsh experience compared to the prison system in his own country?

But, surprisingly, Arnett, home in Omaha, Neb., says he prefers Japan's legal system to ours. Why? "Because it's fair," he says. "The never tried to trick me, even in interrogation. They were always trustworthy. 1 could have got five years and they gave me two. The Americans who were helping them wanted me to get 20. The guards at Fuchu were hard, but they never messed with you unless there was a reason. You didn't have to worry about the other prisoners coming after you, either. And the laws of Japan are for everybody. That's the main thing. The laws in this country depend on how much you can pay. I'd rather live under a hard system that's fair."

'An Act not of Weakness but of Strength'

2008-12-29T22:13:00.000-06:00

It's great to hear that Virginia Senator Jim Webb has set his sights on reforming the prison system in the U.S. As the Washington Post article states today:

This spring, Webb (D-Va.) plans to introduce legislation on a long-standing passion of his: reforming the U.S. prison system. Jails teem with young black men who later struggle to rejoin society, he says. Drug addicts and the mentally ill take up cells that would be better used for violent criminals. And politicians have failed to address this costly problem for fear of being labeled "soft on crime."

It is a gamble for Webb, a fiery and cerebral Democrat from a staunchly law-and-order state. Virginia abolished parole in 1995, and it trails only Texas in the number of people it has executed. Moreover, as the country struggles with two wars overseas and an ailing economy, overflowing prisons are the last thing on many lawmakers' minds.

But Webb has never been one to rely on polls or political indicators to guide his way. He seems instead to charge ahead on projects that he has decided are worthy of his time, regardless of how they play -- or even whether they represent the priorities of the state he represents.

As I wrote earlier, this troubling New York Times article describes how:
- The U.S. "has 751 people in prison or jail for every 100,000 in population.
- Russia is second with 627 prisoners for every 100,000 people.
- England’s rate is 151; Germany’s is 88; and Japan’s is 63.

No wonder Webb thinks Japan's prison system could become a model for ours:

Still, Webb said, the United States could learn from the Japanese system. In his book, "A Time to Fight," he wrote that the Japanese focused less on retribution. Sentences were short, and inmates often left prison with marketable job skills. Ironically, he said, the system was modeled on philosophies pioneered by Americans, who he says have since lost their way on the matter.

Webb believes he can guide the nation back. "Contrary to so much of today's political rhetoric," he wrote, "to do so would be an act not of weakness but of strength."

Don't Force Divorce

2008-12-23T22:28:00.000-06:00

Here is an excellent slideshow of the faces of those affected by the push to nullify gay marriage in California. Maybe I've missed these in the past, but this seems like an amazing way to bring an issue down to the heart level. I recently found out that a friend of mine was married earlier this year in California and now, after witnessing the passage of Prop 8, she has to worry about the legality of her marriage being in jeopardy. Finding that out, and seeing pictures of the wedding last weekend, really brought the issue "home" for me. Whether you know someone who's affected or not, the slideshow will likely bring the issue "home" too.

Does He Who Makes the Rules Get to Break Them Too? (UPDATED)

2008-12-21T08:19:00.000-06:00

When I was sworn in as a Nebraska lawyer, I took the following oath:

"You do solemnly swear that you will support the Constitution of the United States, and the Constitution of this state, and that you will faithfully discharge the duties of an attorney and counselor, according to the best of your ability."

It's similar to the oath George Bush took and that Barack Obama will take in that it requires the taker to "support [and uphold] the Constitution of the United States." Since I practice criminal defense law, I'm constantly asked, in defending my clients at sentencing and upon requesting a particular sentence, whether subjecting the person standing beside me to the penalty I request will deter lawbreaking in the future.

We ask that question automatically in criminal court and I find myself addressing it frequently as people ask me, "how can you defend those people?" This common question assumes somehow that "these people" are almost all guilty, that I'm a little suspicious for standing beside them, and that "these people" are not sufficiently punished, likely through my efforts, in court.

This question springs from a common, modern belief in America that somehow we're not punishing criminals enough and that punishment alone will deter criminals. As I've written before, however, (quoting from the New York Times) it's not like we haven't tried punishment through incarceration at alarming rates. As the NYT article I referenced in that post shows: "The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners." The article goes on to show that:

- Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries.
- And in particular they are kept incarcerated far longer than prisoners in other nations.
- Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

But what do you do when a political leader goes on national t.v. and admits to approving waterboarding, as Dick Cheney did last week? Do you, like Mayor Diamond Joe Quimby create a "blue ribbon commission" to investigate, which will likely take up enough time to ensure that criminal prosecutions growing out of it are very unlikely because of statute of limitations issues?

Do you appoint a Republican prosecutor, like Patrick Fitzgerald, to investigate and potentially prosecute the Bush, Cheney, Yoo, Addington, et al, as Greenwald called for on Bill Moyers' Journal last week? Do you simply forgive, forget and move on, as many beltway Democrats will likely prescribe?

As Glenn Greenwald shows, mainstream media calls for prosecutions are growing, as are cries for forgiving and forgetting?

Greenwald yesterday addressed the question "If criminal penalties are removed, what will deter lawbreaking by political officials?" Ironically, in a country with 1/20th of the world's population and 1/4th of its prisoners- which constantly asks itself the question "but won't letting this potential criminal off easy promote disrespect for and violation of the law in the future?"- it has somehow become fashionable to suddenly forgive and forget when it comes to potential criminality on the part of political leaders.

Molly Ivins (in a column I can't find) once said she thought the country which believed it essential to prosecute Nixon had now lost its appetite to prosecute its leaders. This is dangerous whatever your political stripe as not only do we not want to allow law breaking to go unpunished, we certainly don't want to create a climate in which "some pigs are more equal than others" as occurred on the Animal Farm.

In short, if our leaders, who each take oaths to defend and uphold the Constitution, violate it, even having the gall to admit this on national television, they need to be prosecuted in the same way those who carried out their orders were brought to court to answer for these crimes. This should be the case whether we're discussing Obama or Bush, Biden or Cheney, Democrat or Republican. In America, the "law is king" and the Equal Protection clause ensures that, in America, no one is above the law, no matter what his political party.

But when that portion of the Constitution is not enforced against the leaders who swore to uphold it, the system fails and a failed system can only result.

Along these lines, what can we do as lawyers to ensure that the law is applied equally to leaders and laypeople alike? When you defend people, whom the law does apply to (with a vengeance!) it can be difficult to find the time to stand up against a drive to make it not apply to the powerful or the money to give to those who have taken on this fight.

Why not sign a petition aimed at compelling Democrats to seek prosecution of the Bush administration who violated the law of the land and the Constitution they swore to uphold? The American Freedom Campaign is assembling a petition to do just that, which reads:

"We are lawyers and law students in the United States of America. As such, we have all taken (or will be taking) an oath obligating us to defend the Constitution and the rule of law from those who would violate and subvert them, and to hold wrongdoers accountable.

We believe the Bush administration has committed numerous offenses against the Constitution and may have violated federal laws. Evidence exists that it has illegally spied on Americans, tortured and abused men and women in its direct custody, sent others to be tortured by countries like Syria and Egypt, and kept people in prison indefinitely with no chance to challenge the bases of their detention. Moreover, the administration has blatantly defied congressional subpoenas, obstructing constitutional oversight of the executive branch.

Thus, we call on House Judiciary Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy to launch hearings into the possibility that crimes have been committed by this administration in violation of the Constitution, federal statutes, and international treaties. We call for the investigations to go where they must, including into the offices of the President and the Vice President. Should these hearings demonstrate that laws have in fact been broken by this administration, we support all such legal and congressional actions necessary to ensure the survival of our Constitution and the nation we love."

Patrick Fitzgerald (who was nominated to his current position by Republican Senator but who has also taken many steps to disassociate himself from either political party) has the expertise, independence and commitment to the rule of law to pursue these prosecutions. There's an old Jewish proverb I think of frequently that says "He who has the gold makes the rules." This may simply describe human nature and the nature of power. But today this proverb is in danger of becoming "He who has the gold (and the power) and breaks the rules later escapes them" we are in real trouble, as the King, who proclaimed himself above the law and that we therefore had to rebel against and defeat, has returned to power.

UPDATE: In response to a comment by former federal prosecutor and Firedoglake diarist Looseheadprop, I revised the post above and removed any reference to Fitz being a registered or affiliated Republican. After leaving the comment below, I did some research and found that the nomination of Fitz by Sen. Fitzgerald (no relation) drew his party's wrath, especially that of Karl Rove. Fitz apparently even changed his registration from "independent" to "none" after discovering that "independent" denoted a party, which he sought to avoid.

My mistake; you don't have to "lighten up" after all. I'm just happy you stopped by to correct my mistake. I always enjoy your well-researched work at FDL.

Denial of Due Process?

2008-12-19T16:05:00.001-06:00

I helped my friend write a brief a few months back. The issue was whether a statute which stated:

any presentence report . . . shall be privileged and shall not be disclosed directly or indirectly to anyone other
than a judge, probation officers to whom an offender’s file is duly transferred, the probation administrator or his or her designee, or others entitled by law to receive
such information, including personnel and mental health professionals for the nebraska state patrol specifically
assigned to sex offender registration and community notification for the sole purpose of using such report or examination for assessing risk and for community notification of registered sex offenders. ... the court may permit inspection of the report or examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender.

requires the court to make a finding of "best interests" finding before allowing the prosecution to review the PSI.

In short, the issue was whether the prosecutor was (1) automatically entitled to review the report (a member of the group of "others entitled by law" to review the PSI) or (2) whether he or she was- like the Defendant and his or her attorney- not automatically entitled to review it until the court found that viewing it was in the Defendant's best interests.

Note that if the Nebraska Supreme Court found that the prosecutor was a member of group (1), an absurd result, where the prosecutor saw it and the Defendant could not, was bound to happen. After all, if the prosecutor doesn't have to ask before viewing this "privileged" document and the defendant does, all it takes is for one judge to say no before a situation arises in which the prosecutor and the probation officer have access to a document that the Defendant doesn't, prior to sentencing.

The opinion was released today and that's exactly how the court ruled:

In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to
sentencing and make informed arguments to the court regarding the proper sentence. For these reasons, we conclude that prosecutors are among the “others entitled by law to receive” the information in a psI under § 29-2261(6). We conclude as a matter of law that because prosecutors
are “entitled by law to receive” the information in the psI, it is not necessary under § 29-2261(6) for a court to determine whether it is in the best interest of the defendant before allowing the prosecutor access to the psI. We therefore conclude that the county court did not err in overruling albers’
motion to preclude review of the psI by the prosecuting authority and that the district court did not err in affirming such decision.

However, compare the Court's reasoning below with the statute above:

[S]entencing is a critical stage of a criminal proceeding, Mempa v. Rhay, 389 U.s. 128, 88 s. Ct. 254, 19 L. ed. 2d 336 (1967), and the information in a psI is relevant to sentencing. In order to facilitate full adversary testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the psI in order to evaluate factors relevant to sentencing and make informed arguments to the court regarding the proper sentence.

If sentencing is a "critical stage" and "full adversar[ial] testing of issues relevant to sentencing, it is necessary for the prosecutor to have access to information in the PSI... to evaluate factors relevant to sentencing and make informed arguments... regarding the proper sentence" then how can the statute at issue not violate due process since it requires the Defendant to ask the judge to view this document but entitles the prosecutor automatic access "as a matter of law?"

It's not surprising that a Court would exalt a prosecutor- that's the age we live in- but in exalting him in this way, didn't the Nebraska Supreme Court create a scheme that violates Due Process? All it takes is for one judge to say no to a Defendant and the prosecutor will see what the accused cannot.

If "it is necessary for the prosecutor to have access to information in the PSI" but also necessary for the Defendant to ask the Court before doing so, and likely that a court will soon say no, how is Due Process not violated by this interpretation?

Will someone help us appeal this issue to the U.S. Supreme Court, to avoid this absurd result?

The Velveteen Rabbit

2008-12-16T22:07:00.001-06:00

It doesn't have much to do with criminal defense work or the law in general, but I found the quote below in a stack of books my kids have long forgotten. It's from The Velveteen Rabbit and it reminded me of last weekend and of my trip to TLC:

"What is Real?" asked the Rabbit...

"It doesn't happen all at once," said the Skin Horse. "You become. It takes a long time. That's why it doesn't often happen to people who break easily or have sharp edges, or who have to be carefully kept. Generally, by the time you are Real, most of your hair has been loved off, and your eyes drop out and you get loose in the joints and very shabby. But these things don't matter at all, because once your are Real you can't be ugly, except to people who don't understand."

The part about being real not happening to people who "break easily" reminds me of the Hemingway quote that says "the world breaks everyone, and afterward, some are strong at the broken places." Not everyone becomes real and not everyone learns to become stronger at the broken places, but some succeed.

Undercover Mother

2008-12-05T11:30:00.000-06:00

From MSNBC:

Doreen Giuliano was obsessed with saving her son from a life behind bars after he was convicted of murder.

She gave herself an extreme makeover — blonde dye job, fake tan, sexy wardrobe, phony name — and began spying on jurors. She befriended one juror to root out any possible misdeeds at the trial, and for nearly eight months, they drank at bars, smoked marijuana and shared meals in her tiny Brooklyn hideaway.

The juror eventually opened up to her about his time as a juror, completely unaware that this seductive older woman was the same dutiful mother who sat through the entire trial just a few feet away from him.

Giuliano says "she was driven by the belief her son was set up by authorities and vilified in the press." So she hatched a plan:

In the fall of 2007, Giuliano reinvented herself. She slimmed down at the gym, rented an apartment in Allo's neighborhood and printed business cards with her assumed name: Dee Quinn, a recent West Coast transplant.

Her husband initially told her she was crazy, but backed down. Soon she orchestrated a chance meeting with Allo on the street, pretending to be a lonely single woman from California and giving him her phone number.

Giuliano began inviting Allo over to her place to soften him up. He never recognized her from her days sitting through the trial.

"She was offering me wine, offering to smoke weed," he said. There also was flirting. But both said it never went any further. Mainly, they talked. And her digital tape recorder rolled.

She says she struck gold in late 2007, while grilling her new friend about his jury duty. "I'll tell you this but I would never tell anybody else," he said, according to transcripts prepared by the defense. "I actually had some type of information."

Allo went on to explain that he didn't know Giuca directly, but used to hang out in his clique and heard rumors about the Fisher slaying — something he failed to mention when questioned under oath during jury selection. Asked if he had been curious about newspaper accounts of the trial, he responded that he'd read them. He also bragged that he had been the first one during deliberations to vote for a conviction. "I shouldn't have been in that jury," he said.

The Purpose Driven Death

2008-12-04T16:48:00.000-06:00

Remember when the person who killed several in an Georgia courthouse escaped and then a recovering meth-addict convinced him to turn himself in, referencing the book, The Purpose Driven Life? Pastor Rick Warren's book, already a best-seller, became even more popular and he ended up moderating the debate in California between Obama and McCain concerning "evangelical issues."

Right now I am reading Robert Baer's excellent book, The Devil We Know, so Warren's comments to Sean Hannity about the "wisdom" of killing Iranian President Mahmoud Ahmadinejad strike me not only as stupid both militarily and diplomatically, but also an incredible considering they are coming from the mouth of an evangelical leader.

Appearing on Hannity and Colmes, Pastor Rick Warren said the following, as reported in the Washington Monthly:

Last night, on Fox News, Sean Hannity insisted that United States needs to "take out" Iranian President Mahmoud Ahmadinejad. Warren said he agreed. Hannity asked, "Am I advocating something dark, evil or something righteous?" Warren responded, "Well, actually, the Bible says that evil cannot be negotiated with. It has to just be stopped.... In fact, that is the legitimate role of government. The Bible says that God puts government on earth to punish evildoers. Not good-doers. Evildoers."

Reminds me of how much I love the comments of the wonderful Kurt Vonnegut, who wrote:

For some reason, the most vocal Christians among us never mention the Beatitudes. But, often with tears in their eyes, they demand that the Ten Commandments be posted in public buildings. And of course that’s Moses, not Jesus. I haven’t heard one of them demand that the Sermon on the Mount, the Beatitudes, be posted anywhere.

“Blessed are the merciful” in a courtroom? “Blessed are the peacemakers” in the Pentagon? Give me a break!

Not only do they not mention the Beatitudes, Kurt, they've now modernized and reinterpreted that rule about "Thou Shalt Not Kill." That doesn't apply if they're "evil."

Another Former Client Killed

2008-11-18T20:14:00.000-06:00

When I worked in misdemeanors in the Public Defenders Office, I represented thousands of people and a lot of the memories run together. However, when I glanced at a section of Sunday's paper this morning, on my way out the door to a sentencing at 9 am in a neighboring county, I recognized the name of a shooting victim from last weekend. I don't remember him very well, but remember Shyton Sherrod as very friendly and quick to laugh. I believe he even laughed at the way I mispronounced and then later practiced pronouncing his name to get it right. If I pulled the file and reread my notes, more memories might be "refreshed."

When I read the article, I was surprised to learn that Shyton played on the same team and was even called better than former Husker star Ahman Green:

Shyton D. Sherrod made "the block of the season" during the National Youth Football Championship in 1991, allowing North Omaha Boys Club Bears teammate Ahman Green to score a critical touchdown in a game the team won.

Sherrod was as talented a player as Green, said Raymond Parks, former offensive line coach for the Bears.

"There was some discussion as to who was the better player," Parks said. "They both had the potential to go on to bigger, better things."

November has been a bad month in Omaha as the death is the eighth homicide in the city so far this month and the 40th of the year.

"The Full Power of the... Government"

2008-11-17T20:24:00.000-06:00

I've written before about Douglas County Crime Scene Investigations commander David Kofoed. As I wrote then:

Several years ago a rural Nebraska couple were brutally killed by shotgun blasts to the head. The investigation quickly focused on relatives, specifically cousins Matt Livers and Nick Sampson. Officials quickly theorized that the Sampson car was the getaway vehicle, but an initial search found no DNA evidence. That's when CSI commander David Kofoed was called in for one more search. He "found" a speck of blood matching one the murder victim's DNA on the vehicle's steering column.

Case closed, right? How is the defense lawyer going to demonstrate that the DNA isn't the smoking gun, in other words?

The only problem for Commander Kofoed was that shortly thereafter, two Wisconsin teens were arrested for the murder and a large amount of DNA evidence was once again found in their vehicle.

Yesterday the Omaha World-Herald described an FBI investigation into the matter. It reported that "the speck of blood was the only physical evidence linking cousins Matthew Livers and Nick Sampson to the killings of Livers' uncle and Aunt" and that "Livers- who had been characterized as borderline mentally retarded- implicated himself and Sampson in the murders during 11 hours of questioning." The cousins spent "months in jail" according to the article. It also describes the FBI "looking into why law enforcement continued to detain the cousins even after overwhelming DNA and physical evidence pointed to other suspects."

Kofoed described his reaction to the FBI investigation:

"It would be absolutely ridiculous to plant one little speck, and then be the one who finds it... if you were going to plant evidence, you're going to put it on the steering wheel, or on the car seat or on a door ahandle, a place where it makes logical sense to find it."

Doesn't sound like a guy who's ever considered planting evidence, does it? Remember also that Kofoed's search, which was conducted on his own initiative after an earlier search, by his own lab, yielded no evidence. So, finding more than a "little speck" on a "door handle" would have looked pretty suspicious, don't you think? As the World-Herald reported and I described in my previous post:

"An initial search of the car by a member of Kofoed's staff found no evidence linking it to the killings.

Sometime later, Kofoed re-examined the car, the suit says, and found a tiny spot of blood on the steering column.

A laboratory examination later determined that the blood was consistent with Wayne Stock's DNA.

The Stocks were killed by shotgun blasts to the head and were found in their farmhouse.

Almost immediately, Cass County Sheriff's investigators and the Nebraska State Patrol theorized that a disgruntled family member killed the wealthy couple and that the Sampson car was the getaway vehicle.

Keystone CSI Chief cop or was "the intelligence being fixed around the policy," created by the Sheriff's office?

Either alternative is very troubling. Just ask those people sitting on death row largely as a result of DNA evidence processed through Kofoed's lab.

Kofoed appears to have learned a lesson, however, through this investigation. After the "speck" of blood he found led to the jailing of two innocent men, one borderline mentally retarded, who "confessed" after 11 hours of questioning, who spent months in jail accused of killing their relatives for money, Kofoed has suffered gravely. Although he remains in his job, the investigation has been rough on him:

"I felt the full power of the federal government coming down on me," [Kofoed] said.

Have you ever heard a more ironic statement?

Poetry Contest

2008-11-16T20:14:00.002-06:00

Mark Bennett came up with a great idea for a blawgosphere poetry contest. The subject? Last week, as the Times of London reported:

An internet blogger and a writer who disguised an attack on Burma’s dictator in the form of a love poem were among dozens of activists sentenced to draconian jail terms as the junta ordered a fresh crackdown on dissidents.

Nay Myo Kyaw, 28, who wrote blogs under the name Nay Phone Latt, was sentenced to 20 years and 6 months in jail by a court in Rangoon. The poet, Saw Wai, received a two-year sentence for an eight-line Valentine’s Day verse published in a popular magazine.

Aung Thein, the lawyer for the men, was given four months in prison on Monday for contempt of court during his defence.

After I read Mark's post and the article, I felt compelled to write. I'd been listening to Victor Chan's The Wisdom of Forgiveness in the car on audiobook over the last couple weeks and some of those ideas showed up. In college I studied Solzhenitsyn's Cancer Ward thoroughly and still think of it all the time. Solzhenitsyn was "gulaged" for making derogatory comments in a letter to a friend about "the whiskered one," Joseph Stalin. Things my professor desciribed about Solzhenitsyn's experience showed up too.

I hadn't written any poetry, other than a couple poems at Trial Lawyers College, since college, so I wanted to try it again. I started the first one after dinner and finished about 10. There were some "spare parts" lying around that I put into a second one, which began at 5 am and ended about 6:30 when I had to let the dog out and wake everyone up.

Enter the contest, as I'm sure you'll do better than me. The two I wrote are below:

For Phone Latt

Manicured, gold-gilded hands,
Encircle an ivory pen,
Deliberately, dip its silver tip
Into thick, black ink.

The hand slides down the page,
Forms characters, into a sentence:
20 years, six months,
A violation of public tranquility.

Then the hand moves further down,
Signs its name, an official seal.
His crime? Hiding meaning
Inside a seven-line love poem.

Other saffron revolutionaries,
Some monks, sit, likewise,
Imprisoned, where this dangerous
poet serves, with 2000 others.

20 years six months:
That’s 560 moons. 7300 sunrises.
10 seasons for every line.
120 days per word.

The saving grace? Poet’s pens
Outlast swords, unjust judges:
In time, sentences are reversed.
Even worse, returned.

Here's the one that arrived the next morning:

Poets in Prison

Solzhenitsyn, gulaged, paperless,
scratched poems on bars
of soap, committed
lines to his memories,
then washed its surface clean,
To compose new verses.

And that Buddhist master,
A former “freedom fighter”
Survived prison, thrived even
Through forgiveness, learned
to purge revenge.

After his escape, his sentence,
Those torture tests, proved to raise
his practice, above those cloistered monks,
Prison surpassing monastery,
for training purpose.

In Burma, the poet’s pencil-calloused hands
Grasp bars, fingernails ooze pus, dried blood,
Remnants of unfathomable pain,
creating unexpected distance.

Still enclosed, his lines resonate
between bars, beyond walls,
Prove his convictions,
Achieve his release.

Dying Clients

2008-11-11T22:09:00.000-06:00

Last night, sitting in front of the t.v., laptop in hand, working on a new website and feeling guilty for not blogging more lately, I see a story on the local news about a shooting that happened over the weekend. He was a former client and I knew it was him when the age of the man that was killed matched up with the age of the boy I used to represent on misdemeanor charges after I did the math.

I'm amazed how many of my former clients have been killed over the last few years. One of my favorite first clients, whom I wrote about here, was killed in a car accident in the car that he supposedly driving when he ran from the police. Then there was the day a woman reached out and tapped my shoulder a couple years ago and told me she'd buried her son that day. He was a former juvenile client of mine who was hit by a stray bullet at his school, killed without even being involved in the fight.

Then there was the prostitution client who was found in the dumpster and the other one who was pushed out of the car on the interstate by her "boyfriend," only to be hit and killed by oncoming traffic.

And those are just the ones who deaths I heard about. I'm sure there were many others, like perhaps this guy, who might have died quietly, out of the headlines, or this person, whose recovery was inspiring but who went back to prison eventually and who struggled with hepatitis. I wonder if she's still alive?

Last Tuesday, election day, I had the best conversation with a woman who was a resident of the care home that was serving as a polling place. I was volunteering as a poll watcher and she approached me to complain about something I've forgotten. She and I ended up talking for a long time, about what it was like to be in a care home, and how much she missed little things like being able to cook for herself and being able to go for a run. She'd recently lost a foot to diabetes and the look in her eyes when she told me about missing "little things" like being able to jog or cook your own food made me want to go home, run, cook and quit complaining.

When we talked about her wanting to vote provisionally, she told me she couldn't remember sending in her absentee ballot as she'd been on a lot of morphine at the time.

She told me she wanted to make sure her vote counted because she didn't think she'd make it to the next one. I didn't know what to say, but I listened and I think that's why we got along so well.

Then later, a black man, also in a wheelchair and also missing a foot from diabetes rolled up to the polling place from his room upstairs in the care home. I tried to help him when they told him he couldn't vote, even calling the "hotline" they gave me. But it didn't work as the man couldn't tell us when he'd last voted, decades ago perhaps, and described moving since the last time he voted. It appeared he'd been "purged" from the list of registered voters and, being no longer registered, could only register for the next election, unable to vote in this one.

He looked very disappointed to not be a part of "this" and, like Gloria, the other one-footed voter, like he wasn't sure he'd live to see another one.

I thought of him both on Veteran's Day today and last week when it was announced that one Nebraska electoral vote, from Omaha, went to Obama. Something tells me that's what he wanted to be a part of.

Waiters of the World Unite! (updated below)

2008-11-01T12:22:00.000-05:00

Glenn Harlan Reynolds is a law professor at the University of Tennessee and author of the blog "Instapundit." His wife, Helen Smith, is also a blogger as well as a forensic psychologist who writes this blog. Yesterday she came up with an idea to deal with uppity Obama voters, at least those who are waiters and waitresses. In a post, linked to by her husband, entitled “Should You Tip Less in an Obama Administration?”, she writes:

I often tip generously both because I have been a waitress and because I think it is important to reward people who work. However, if Obama gets in (and it is still an if), perhaps tipping less or not at all would be a good way to save money as a way of "going John Galt." Yet, is it fair to the person who is stiffed? What about a compromise, just tipping less? What do you think?

In case you don’t know, John Galt is the hero of Ayn Rand’s Atlas Shrugged who:

...is a man disgusted that non-productive members of society use laws and guilt to leech from the value created by productive members of society, and furthermore even exalt the qualities of the leeches over the workers and inventors. He made a pledge that he would never live his life for the sake of another man, nor ask another man to live for him, and founded an enclave, separate from the rest of the country, where he and other productive members of society have fled.

So Dr. Helen’s idea for “going John Galt” is to get and other “Atlases” (picture of her husband) to not only stop holding up the world but stop tipping those who only hold up plates and trays for these world carriers.

That will teach them to vote Obama! To be fair, she doesn’t actually advocate stopping the practice, well common courtesy, of tipping. She is simply proposing “just tipping less.” Don’t stiff them, just cut their wages down. After all, they're paid a whopping $2.01 per hour to bring you your lunch.

As if this weren't arrogant enough, she then goes even further, suggesting that along with a lower tip, other "Atlases" should leave notes, referencing Obama:

I've been thinking. If Obama is elected, maybe in lieu of a tip I should leave a note like the following:

HOPE AND CHANGE FOR AMERICA: Spreading the Wealth Around.

In lieu of a tip, $_____ has been donated to the Re-Elect Obama for President Campaign. Thank you for supporting the man and the movement that are bringing America together!

If enough people leave notes like this, I'm sure it will galvanize waitpeople everywhere in support of The One!

”

Have you ever seen clearer evidence that the Ayn Rand wing of the Republican party needs to be defeated, purged, and perhaps tarred and feathered along the way?

Dr. Helen provides one reason that she tips, but I’d like to suggest another. She says, “Despite this post, I often tip generously both because I have been a waitress and because I think it is important to reward people who work.”

I waited tables and bartended my way through undergrad. In fact, sometimes, as a criminal defense lawyer who works frequently with people either actively using drugs or struggling to kick their habits, I think I use the people skills I learned as a bartender more than the information I learned in law school.

The other reason to tip, Dr. Helen? The person you may be treating like a second-class citizen is likely going to be alone with your soup. Although I didn’t ever witness it, I heard stories from co-workers who worked college towns like Lawrence, KS, where the city was largely broken down into financially-comfortable professors or administrators and their families and ramen-noodle eating students/waiters, who couldn’t control what you left them for a tip but could control what they left in your French Onion soup the next time you came in.

News Flash to Dr. Helen and other alleged Atlases considering going "John Galt" on their waiters: When you are willing to unfairly exploit the trust-based relationship that waiters and waitresses rely on and retaliate by stiffing them because their social class likely marks them as Obama voters, don't be surprised when they're willing to return the favor by spitting squarely into your Cesar Salad. When you laugh to Instapundit about how clever it is that you're teaching Obama voters a lesson by short-changing them with a lousy tip, don't be shocked that they're standing in the back room laughing, imagining you getting a little more than you paid for in your ranch on the side.

I know that’s disgusting to consider, but it’s motivated me to be respectful, both because these people work hard to serve you your food and because I know that people who feel deprived of justice and unable to attain it through wages will often create their own version of it, if only for a laugh at your expense as you sit there discussing Ayn Rand, thinking of yourself as somehow holding up the world, and then leaving a 10% tip since they probably voted Obama.

One of my favorite street-smart judges acknowledges this reality by stating, whenever he sentences a person and discovers, in the process, that they work in a restaurant. He says, “well, I can never go back there again!” When they try to tell him he can come back to eat there, he usually asks them if they think he's that dumb and they usually say no. And then they go to jail and he finds a new place to eat.

As disgusting as it is to consider this, is it any less so to advocate, as "Instawife" does, that people should retaliate against an Obama victory by cutting tips down and thus stating, in effect, “this is what you get for not voting McCain / Palin." But in fact, she goes even further than this, stating, obviously sarcastically, that leaving notes referencing Obama will "galvanize waitpeople everywhere in support of The One!"

And what would a forensic psychologist say about a person who espouses these disgusting beliefs?

I truly think she imagines mad "waitpeople everywhere" standing in the backroom angrily regretting their votes for Obama and being converted into neocons instantaneously. It's as if she's thinking, in true Randian form, that by stiffing these people she's truly helping them, teaching them the "virtue of selfishness" and being willing to "go John Galt" and deprive them of the benefit of her world-supporting habits if they don't vote the way she wants them to next time.

I have to admit, it gives me a sense of justice to think of her arrogantly walking out of the restaurant, believing that she and her co-Atlas, uber-nerd husband are teaching their waiter a lesson while the waiter cheerily waves goodbye, remembering that cold he just got over and wondering what the results of that (medical?) test are going to be.

No Justice: No Peace of mind that your salad doesn't contain your waiter's saliva is how the world works.

- - -
Seriously, isn't this a wonderful example of the need to raise the minimum wage for "waitpeople everywhere?" After all, their wages are well below the regular minimum wage because of an assumption that they are tipped at a certain rate. Because a prominent right-wing blogger's wife is advocating retaliation for an Obama vote via cheap tipping, isn't this evidence that the trust inherent in the waiter's role is being exploited? Why not raise their wages so they don't have to rely on people like Dr. Helen Smith to afford the food they're required to deliver to her table?

We don't need an Army of Davids, at least not the kind who see themselves this way while advocating punishing waiters for an Obama victory. What we need is an army of waiters.

UPDATE: I think this is Dr. Helen's attempt to "soften up" the sickness of her post on waiters. But I think it's even more revealing, perhaps just the product of her realization that the waiters she depends on can, well, read and perhaps create a little "instajustice:" In response to a commentator who (1) assures her he and his other pizza delivery drivers are mostly McCain supporters, and (2) asks her not to take it out on those who depend on tips:

There is no way I could. In the space of the past 24 hours, I have been out to eat three times and left even bigger tips than I usually do. I am watching people work hard and I know I cannot withhold money to local people in Tennessee that are so industrious. Perhaps in blue cities or where it is clearer that people believe in redistributing wealth, it would be easier.

Translation: "Don't spit in my food here in Knoxville 'cause I'm only going "John Galt" when I travel to "blue cities or where it is clearer that people believe in redistributing wealth."

Her husband then links to what he calls an Instapundit take on taxes that also reveals a lot about the instacouple's take on waiters and other poor people:

"Throughout history, poverty is the normal condition of man. Advances which permit this norm to be exceeded — here and there, now and then — are the work of an extremely small minority, frequently despised, often condemned, and almost always opposed by all right-thinking people. Whenever this tiny minority is kept from creating, or (as sometimes happens) is driven out of a society, the people then slip back into abject poverty."

So just keep on serving them the food, no matter how much or how little they tip you; otherwise the "small minority" that obviously includes this lovely couple, will "go John Galt" and we'll all go back to our "normal condition" of poverty.

As if you could possibly stomach it, here's a link to Dr. Helen discussing what she calls "the various ways of "going John Galt.""

Apparently if we don't "go John McCain" next week, this (thankfully!) small minority of so-called "Real Americans" have more ways of "going John Galt" in store for those of us who live in "blue cities or [places] where it is clearer that people believe in redistributing wealth."

My wish: Please follow the real John Galt and show us what it would be like to have to live without you!

Suicide Watch

2008-10-28T20:51:00.000-05:00

I remember being a public defender just a couple years out of law school and meeting with a young client charged with a misdemeanor. I don't remember the charge or even his name, but I do remember the serious tone in his voice when he told me he was considering suicide. It didn't sound like an empty threat or a cry for attention, but sounded like a genuine cry for help. It also sounded like it was nothing I could do that much about in the long-term as I had a full afternoon of court and not much expertise in dealing with people this desperate,whose immediate problems were more mental than legal.

But it was a moment I'll never forget. He seemed both trusting and serious about his wish. I, on the other hand, knew I was in way over my head and that I had to take this seriously. We contacted a local suicide hotline and made an appointment for him to meet with someone that day. I saw him a few weeks later, at his court hearing, and he seemed to being much better. But I was busy again and didn't have time to follow up to see if this peace lasted.

I hadn't thought about this in a few years, but today a letter arrived from my daughter's high school that made me think of it;

"All of us at XXXX High School were deeply saddened to receive news this weekend of the death of ... one of our XX grade students. [She] died Sunday evening by hanging...

The most important thing we should do is to be supportive and encourage discussion about the events, our feelings, and what we can do in response to it.

She was likely just 17 years old if she was in 11th grade. What a tragedy.

Wired, Working and Watching

2008-10-26T21:32:00.000-05:00

I've been incredibly busy lately, bringing work home and unable to sleep some nights thinking about cases. But I love baseball, love the story of the Rays, who had the worst record in the American League last year as well as the second lowest payroll in baseball. Now they're in the World Series, so I don't want to miss an inning.

Last Sunday night, as I watched the Rays beat the Red Sox, I had to transcribe a tape recording quickly, for the next day, but didn't want to miss the game. So, I came up with a solution:

1. Hook up Mac Dictate, the talk to text application that brought the "engine" behind Dragon Naturally Speaking to Macs, the headset covering one of my ears.

2. Hook up the headphone from the digital recorder to the other ear and simply repeat the words I hear into the microphone, in theory at least, turning the spoken words into text to create a "transcript."

3. Put the Macbook on my lap to correct the inevitable misspellings or to add text when it's faster to type than to speak.

I had good reasons for doing it this way (I needed a working transcript quickly) but there are obviously much better ways to do it if you have the time.

Still, as I worked on three different electronic devices while trying to watch baseball on a fourth, I thought of the way technology saves us time but how we tend to fill any extra time up with more tasks.

It worked and I got a reasonably good transcript quickly while at least being able to check in on the game once in awhile.

And the underdog won, which is always encouraging.

Note: I recommend Mac Dictate or its PC companion Dragon Naturally Speaking but they do require some training to get "up to speed." I like it, though, because it makes typing less stressful as I can sit back and add text fairly accurately without having to hunch over a keyboard. My letters are a little wordier now (and last week I learned how important proofreading is when I wrote about a "canny attorney) but it's worth the money if you do much typing.

Be careful though. Make sure the microphone is off when you want it to be! Late in the evening, hurrying to pick my wife up but wanting to get one last letter out, I finished the letter. It was late and it was a long letter so I may have said a couple colorful words as I loaded the printer and the envelope. Then, right before I hit "print" I noticed that the green light was still on, meaning that the application/ program was still converting my talk into text.

Oops.

After checking to make sure no four letter words showed up in the letter, I finally sent it off. The next day I tested it. Apparently the developers anticipated this scenario as none of George Carlin's Seven Dirty Words was in the memory. It was a little embarrassing to have to explain to the secretary next door that I was "just testing my computer out.

She said she believed me, but, from the look on her face, I'm not so sure.

UNL Cancels Ayers Speech After Threats

2008-10-23T21:50:00.000-05:00

Today's Omaha World-Herald contains an explanation from Chancellor Harvey Perlman regarding the reasons behind his decision to cancel a scheduled speech by William Ayers.

The university on Wednesday released a report from the assessment team, after being asked for more detail on the threats that prompted Perlman's action. Ayers had been scheduled to speak at an education conference in November...

Mario Scalora, a professor of psychology who serves on the campus threat assessment team and wrote the report, conceded that the report contains no direct threat against the life of Ayers or anyone involved.

But it contains some veiled threats that were called and e-mailed to university officials. Scalora said the person who took the "it will be done" message "was rather concerned given the way the person said it."

The report also contains some violent statements posted anonymously on message boards. One from "Lee Harvey Cornhusker" said, "Give me a sniper rifle and a good firing position."

While not directly threatening, Scalora said, the communications attested to the amount of anger that Ayers' visit had incited - anger that made it clear that considerable security measures would have to be made.

"When people spout off a death threat, you can manage that," Scalora said. "It's more you have a bunch of angry people saying they're going to show up and be disruptive. . . . We realized it would require a considerable amount of security."

Scalora said adequate security most likely could have been provided to enable the appearance to go on. But it would have totally changed the nature of the event, which was supposed to be a small conference of education students studying education reform.

"We could have turned it into an armed camp, and it would have happened," Scalora said. "But it would have been difficult for all those present, and there were still concerns with how things would evolve."

Scalora said the committee recommended that for the event to go ahead, a change of location and substantial security, including state and local law enforcement, would be required. The final call, Scalora said, was the chancellor's.

Why isn't this bigger news? The largest state university in Nebraska cancels a speech due to to "a bunch of angry people saying they're going to show up and be disruptive" and a message board posting indicating a desire to get a rifle and a good spot to shoot and no one asks who these people are or what threats they pose?

Imagine the reaction if G. Gordon Liddy were scheduled to speak and threats forced the University to cancel the event. What would be the reaction?

Apparently the "anonymity" of blogs and message boards is a barrier to any "investigation" of these threats. Quoting UNL Police Chief Owen Yardley the article states:

UNL police will investigate some of the threats, but it will be difficult to track people who sent e-mails or posted on blogs, Yardley said.

I.F. Stone used to summarize his speeches by saying that the audience would likely forget most of what he said but that it should remember one thing: "All Governments Lie."

Will someone please examine both these "threats" and these claims and tell us whether either is true?

Take That Luckovich!

2008-10-14T20:40:00.000-05:00

I entered an editorial cartoon caption contest that I found last weekend at McClatchydc.com.

I used the name "Lennonist" and I won!

You can check it out here.

(BTW, my wife doesn't get it!)

Sense of Decency?

2008-10-11T21:48:00.000-05:00

Tim Nelson is the Democratic candidate for canny attorney in Maricopa County, Arizona. The incumbent, Andrew Thomas, a Republican, denied any involvement in a recent attack ad that went after Nelson:

The Nelson ad opens with images of children riding tricycles and eating dinner at a family table.
"They deserve a safe neighborhood, a secure home," a woman's voice says. "They deserve the innocence of childhood and all of its wonder. And they deserve to be protected."
Then there's a drum roll and a frowning photo of Tim Nelson flashes on screen.
"But can they count on liberal ACLU lawyer Tim Nelson?" the woman continues. "He took money from a child pornographer and from lawyers who defend child murderers. Liberal Tim Nelson isn't just wrong. He's dangerous."

So I guess the lesson is that if you’re a criminal defense lawyer be careful about the unintended consequences of contributing to political campaign. While you may be trying to help, imagine if you later see an ad stating that the candidate you support “ took money from a lawyer who defends (insert something one of your clients was accused of.)” [Don't worry Scott Kleeb, this isn't a long-winded attempt to get out of that promised contribution! If you want my money, I'll still give it to you!]

Before I met Steve Achelpohl, an Omaha criminal defense attorney and current chair of the Democratic Party, I used to feel sorry for him when I saw him interviewed on TV. Not only did he have the difficult task of speaking for the minority party in a very red state, his opponent would inevitably remind the audience that Steve was one of those, you know, “criminal defense lawyers.” While you expect such things in politics (Obama seems to have a good trial lawyer’s ability to, jiu jitsu like, turn such attacks to his own advantage) this ad sinks to a new low.

So where did the ad come from? The Thomas campaign denied any involvement. The article states that “[the ad] was produced by an independent organization with which Thomas' campaign could not legally collaborate.”

But who paid for it? According to the article:

The Republican Party paid for one airing of the commercial on Channel 5, said Edward Munson Jr., the station's vice president and general manager.

I don't mean to pick on Republican county attorneys, only to call BS on this ad and this tactic which targets not only criminal Defense lawyers but the candidates they support. I don't think this tactic is a "Republican" tactic, only a dirty one. If the parties were reversed, I'd say the same thing.

So what do you do about it? The ad concerned the contribution of $390 from a criminal defense lawyer to Nelson's campaign. Nelson later gave the money to the victim's rights organization, but the ad aired anyway.

So Nelson lost the money and still paid the price. But what if, whenever we see such a deplorable tactic, we resolve to contribute to its target, no matter which party we are contributing to?

If you're interested, the link to Tim Nelson's campaign is here.

People in Glass Houses...

2008-10-07T21:20:00.000-05:00

... should not throw stones. As Sarah Palin accuses Obama of "palling around with terrorists" she should realize that her own past will, or at least should, be fair game as well.

In 1994, the New York Times, in an article entitled "Remains of Alaska Separatist Are Identified" writes that:

The blue tarp and duct tape in which the remains were wrapped, officials said, matched a description given by a convicted thief, Manfred West, who confessed last summer that he had killed Mr. Vogler in a plastic-explosives sale gone bad and had then buried him.

Remember that Palin's husband Todd was a member of Vogler's group, the Alaska Independence Party, until 2002.

According to this article in Salon.com today, not only was Vogler the founder of the Alaska Independence Party, he also proudly claimed "I'm an Alaskan, not an American. I've got no use for America or her damned institutions." In this quest, he also sought and received the support of another nation in this quest:

Vogler's greatest moment of glory was to be his 1993 appearance before the United Nations to denounce United States "tyranny" before the entire world and to demand Alaska's freedom. The Alaska secessionist had persuaded the government of Iran to sponsor his anti-American harangue.

Imagine the reaction if Obama's spouse had, just six years ago, been a member of a group whose founder's body was found after "a plastic explosives sale gone bad?, who claimed to have "no use for America or her damned institutions?"

Did she "open the door" to the discussion of these ties to radicalism by trying to point to Obama's supposed radical links?

Not So Fast?

2008-10-05T08:25:00.000-05:00

I once heard Arundati Roy say that when she wants to know what is truly going on in America she turns to people like Noam Chomsky. Whether you agree with his politics or not, the following excerpt (and prediction) from a recent interview with Alternet, is both scary and insightful:

My assumption all along is that McCain will probably win. Now that he has picked Sarah Palin as his vice president, I think those probabilities have increased, for reasons that are understood by party managers and have been expressed very well by McCain's campaign manager. He said the election is not about issues, it is about character and personality, and so on. Meaning, it is not a serious election. That is the way U.S. elections are run. Issues are marginalized. They don't talk about them and the media coverage is about Rev. Jeremiah Wright's sermons or Sarah Palin's pregnant daughter.

It was reported today that Obama will respond to McCain's announced new aggressiveness with "political jiu jitsu," that is, by going after McCain as undependable in a crisis as shown by his choice of attack over leadership. While such tactics strike me as effective both in trial and in politics, Chomsky believes the Republicans still have an advantage:

...These elections are run by the public relations industry. The intellectual community goes along. Issues are marginalized. The focus is on personalities, on Jeremiah Wright's sermons, Sarah Palin's pregnant daughter, or whatever it may be. In that terrain, the Republicans have a big advantage. They also have a formidable slander and vilification machine which has yet to go into full operation.
They can appeal to latent racism, as they are already doing. They can construct a class issue. Obama is the elite Harvard liberal; McCain is the down to earth ordinary American, and it so happens that he is one of the richest people in the Senate. Same thing they pulled for Bush. You have to vote for Bush because he is the kind of guy you would like to meet in a bar and have a beer with.

While I don't share Chomsky's skepticism that, at least in this election, personalities will trump issues enough to win, his point about the "two factions of the business party" seems more appropriate in the wake of the bailout, I mean "rescue."

These are games run by the public relations industry, which is a huge industry. It spends enormous resources manipulating attitudes and opinions. They design and control elections so that public in effect is marginalized. They keep away from issues for a very good reason. We know a lot about American public opinion. It is a very heavily polled country, mainly because business wants to keep its finger on the public pulse. So there is a ton of information, valid information. On a host of major issues, domestic and international, both political parties are well to the right of the population. So therefore, you don't want to talk about issues, not if you want to keep the business parties in power. Further, the population is aware of this, but the press won't publish it; 80 percent of the population says the country is run by a few big interests, looking out for themselves, not the benefit of the people, By about 3 to one, people object to the fact that issues are not at the center of the campaigns. They want issues to be discussed, not personalities. Party managers know that, but they won't go along with it; it is too dangerous. They have got to make sure that the two factions of the business party, Republicans and Democrats, stay in power.

Obviously there are enormous differences between these "two factions" that are at stake in this election. The biggest, in my view, lies in the areas of Supreme Court appointments, as we will be rid of either Obama or McCain in less than a decade but dealing with their appointed Justices for generations.

But Chomsky's descriptions ring true and thus worry me about whether a man who has shown an inability to manage a campaign or choose a running mate will end up winning despite these errors. In fact, two articles which were not widely reported over the last week worry me even more. They both concern whether an "October Surprise" is coming soon.

First, Robert Baer, a former CIA Agent and the inspiration for George Clooney's character in Syriana asks, in this article, "Are we going to have an October surprise, an attack on Iran by either the Bush administration or by Israel to stop the regime from becoming a nuclear power?" answering that:

It could happen - and alter the dynamics of the presidential race in the blink of an eye - but only if Israel pulls the trigger. Don't expect the United States to drop bombs anytime soon. The reason: Iran has us over a barrel.
According to Britain's Guardian newspaper, Bush earlier this year nixed an Israeli plan to attack Iran's nuclear facilities. Reportedly, the President said no because we couldn't afford Iranian retaliation against our troops in Iraq and Afghanistan or Iran closing down Persian Gulf shipping. Nonetheless, cynical speculation is now swirling in some quarters that with the financial collapse working against McCain - and Bush's legacy coming into focus - the President might reconsider. Could that tail really wag the dog?

Second, former "terrorism czar" Richard Clarke
asks "Why Osama bin Laden and al Qaeda Might Try to Affect the Election Between Barack Obama and John McCain."

What would be the purpose of any attempted manipulation of the U.S. election? It could just be to use the election to magnify the media coverage of their terrorist activities, make al Qaeda look even more capable than it is, and remind everyone they are still around. Such a media-amplified attack might help them with recruitment and fundraising. Even more likely is the possibility that al Qaeda would hope the attack would benefit John McCain. Opinion polls, which, as noted above, al Qaeda reads closely, suggest that an attack would help McCain. Polls in Europe and the Middle East also suggest an overwhelming popular support there for Barack Obama. Al Qaeda would not like it if there were a popular American president again.

I have no idea whether Chomsky is correct about McCain or whether Baer and Clarke are correct to anticipate either a U.S. approved Israeli attack on Iran or an Al Queda attack on the U.S., but I know this guy's analysis is always spot on: "It ain't over 'til it's over."

Follow-Up Questions

2008-10-01T21:58:00.000-05:00

I’ve found it harder to write about criminal defense or other legal issues lately as I’m a little mesmerized by the election and the financial bailout. But in watching Katie Couric interview Sarah Palin, it seems her technique has something to teach lawyers about cross examination. I don’t mean to imply that Katie is cross examining Sarah the way a lawyer would “cross” a witness in court, but maybe her technique would work for us.

Katie’s best weapon is the follow up question. Palin, much like an expert witness, can say nothing very well and has memorized the talking points well. But she can’t deal with a simple follow up question that forces her to get into specifics beyond the platitudes.

For example, in this exchange, Couric has just asked Palin why, in her view, is Roe v Wade a bad decision and Palin has replied that it “should be a states' issue.” Watch how Couric asks a simple follow up to delve into her understanding of the foundations of the decision;

COURIC (to Palin): Do you think there's an inherent right to privacy in the Constitution?
PALIN: I do. Yeah, I do.
COURIC: the cornerstone of Roe v Wade
PALIN: I do. And I believe that...individual states can handle what the people within the different constituencies in the 50 states would like to see their will ushered in in an issue like that.
COURIC: What other Supreme Court decisions do you disagree with?
PALIN: Well, let's see. There's..of course...in the great history of America rulings there have been rulings, that's never going to be absolute consensus by every American. And there are..those issues, again, like Roe v Wade where I believe are best held on a state level and addressed there. So you know..going through the history of America, there would be others but..
COURIC: Can you think of any?
PALIN: Well, I could think of...of any again, that could be best dealt with on a more local level. Maybe I would take issue with. But you know, as mayor, and then as governor and even as a Vice President, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today.

Couric certainly could have pressed her harder, asked again if she could, please, just name one decision or at least admit that she doesn’t know one. But she, probably wisely, moves on, knowing that it will be a long “cross” and that the truth about Palin’s knowledge on Supreme Court decisions has been sufficiently uncovered.
It’s easy to build a “house” that looks pretty solid when you can build it using a candidate who reads from teleprompters and then is interviewed by people like Hugh Hewitt who asks such tough questions "Now Governor, the Gibson and the Couric interview struck many as sort of pop quizzes designed to embarrass you as opposed to interviews. Do you share that opinion?

Hewitt later (seemingly on redirect after cross by Couric) asks her if she and her husband “ever faced tough economic times where [they] had to sit around a kitchen table and make tough choices?” Palin, being thrown a softball, says that she “know[s] what Americans are going through.”
But then, in what must have made Hugh cringe, made an admission that won’t sit well with McCain. She said:

[T]here’s been a lot of times that Todd and I have had to figure out how we were going to pay for health insurance. We’ve gone through periods of our life here with paying out of pocket for health coverage until Todd and I both landed a couple of good union jobs. Early on in our marriage, we didn’t have health insurance, and we had to either make the choice of paying out of pocket for catastrophic coverage or just crossing our fingers, hoping that nobody would get hurt, nobody would get sick.

Ouch. She did just fine until she admitted it was a “union” job that pulled them up.
To return to the “House” analogy, it’s easy to build one that appears strong when its strength is only tested by people like Hewitt and by speeches in front of screened augiences with a teleprompter clearly showing what another person previously wrote and that your candidate has practiced.
But Couric “blew the house down” with simple follow up questions. Remember the question about which publications Palin reads? Watch how the follow up question dooms her and shows the audience that the person being questioned, who eloquently spouts generalities, cannot survive being asked about specifics:

COURIC: And when it comes to establishing your world view, I was curious, what newspapers and magazines did you regularly read before you were tapped for this — to stay informed and to understand the world?
PALIN: I’ve read most of them again with a great appreciation for the press, for the media —
COURIC: But what ones specifically? I’m curious.
PALIN: Um, all of them, any of them that have been in front of me over all these years.
COURIC: Can you name any of them?
PALIN: I have a vast variety of sources where we get our news.

Once again, ouch. The seemingly solid “house” gets blown down when asked for simple specifics.
It will be interesting to see how Palin does tomorrow night and the stakes for her career will be incredibly high. She will likely either turn into a footnote (if she performs like she did in these Couric interviews) or perhaps create a future for herself even if McCain loses if she can prepare and perform on a national level so quickly after such a shaky start.

Of course, hardcore supporters and detractors will see what they expect to see, but if Palin can somehow win over those who aren’t so polarized, she might pick McCain, and perhaps herself, up off the canvas the Couric interviews clearly put her on.
Couric also deserves credit for effective use of the “soft cross,” or at least the journalistic version of it. I saw Couric, before this interview, perhaps as Palin’s handlers likely characterized her, as a sweet, competent, but not hard-hitting reporter. I expected a friendly chat, with no real cross examination, but Couric showed that she can use these personality traits to her advantage. She, softly and nicely, kept asking follow up questions, not being afraid of the silent, awkward moments between question and answer. Couric brought out the truth about the person she was interviewing without resorting to the type of confrontation that would have turned the audience against the interviewer and towards feeling sympathy for the “questionee.”
Gerry Spence describes a moment when a jury member approached him, obviously upset at having just denied justice for his client. The woman asked Spence “Why did you make us hate you so?” He learned that he’d gone too far in tearing up the witnesses on cross, his anger having not only skewered the witnesses but alienated his audience. His hatred spread throughout the courtroom and doomed his client’s case.
Having seen how competent and effective Couric was in bringing out the truth about Palin without once raising her voice, I am reminded of another of Spence’s phrases: “Love is always the winning argument.”
I don’t mean to imply that Katie showed love to Palin, only that she didn’t show hate, didn’t go too far, knew when to stop, and seemed to sense when to simply let her “witness” hang herself.
Couric’s “soft cross” of Palin might be the breath that blew her house down, revealing it to be a mere facade that couldn’t withstand even a simple follow up question.

More Like This

2008-09-26T15:57:00.000-05:00

A couple weeks ago Scott Greenfield wrote about a Ninth Circuit case, Garcia-Aguilar v. U.S. Dist. Court, (link to opinion).

I remembered the judge's bold description that the case "show[s] why the ten most terrifying words in the English language may be, “I’m from the government and I’m here to help you.” In fact, I find myself repeating the phrase out of frustration often, so often, in fact, that I went back to read the case. Since there's no way to improve on Judge Kozinski's introduction, here it is in full:

We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.

These consolidated cases show again why the ten most ter-
rifying words in the English language may be, “I’m from the government and I’m here to help you.” Defendants pled guilty to re-entering the country illegally after having been previously removed, in violation of 8 U.S.C. § 1326. Their guilty
pleas were taken by magistrate judges, who conducted the plea colloquies required by Rule 11(b) of the Federal Rules of
Criminal Procedure, and who thereafter recommended that the district court accept the pleas.

When the cases came before the district court for acceptance of the pleas, the U.S. Attorney objected on the ground
that the magistrate judges had erred in conducting the Rule 11(b) colloquies. The district judges agreed and refused to
accept any of the defendants’ guilty pleas.

We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.

Rule 11(b) is there for the defendant’s benefit, so it seems quite noble at first for the U.S. Attorney to stick up for defendants’ rights. But this generosity comes at a steep price: The
U.S. Attorney has already arraigned defendants on superseding indictments that specifically charge a violation of 8 U.S.C. § 1326(b)(2), which is punishable by twenty years in prison.

This is eighteen years more than the two-year maximum sentence available under defendants’ original indictments, which
did not charge any conduct that could increase the maximum penalty above two years. Defendants reject the government’s help and petition for writs of mandamus directing the district court to accept their unconditional guilty pleas.

After that excellent introduction, the opinion ends like this;

Due to the U.S. Attorney’s oversight, defendants may well avoid the enhanced sentences to which they may have been subject under section 1326(b)(2). “So be it.” United States v. Velasco-Heredia, 319 F.3d 1080, 1087 (9th Cir. 2003). The district court shall accept defendants’ unconditional guilty pleas to the original indictments.

One role of the defense lawyer is to educate the judge about the necessity of ensuring that the law is applied to the government as it prosecutes people for breaking it. It's much easier when judges grasp the necessity of this role and so much more enjoyable when they demonstrate it so eloquently.

One other phrase I often think of is that bureaucracy and justice are like oil and vinegar: If not constantly agitated, they naturally separate.

A DUI Defender's "Perry Mason Moment"

2008-09-23T09:53:00.000-05:00

On Friday I was able to attend an excellent seminar on Cross Examination put on by the NCDAA which featured Terry and Terry MacCarthy of Chicago. Terry, Jr., was my instructor at the National Criminal Defense College and is both an excellent teacher and lawyer. Terry, Sr., is the nation's leading expert on cross examination. I'll write more on the seminar later, but thought at the end of it that I love to go to these things both for the information and the opportunity to meet with other criminal defense attorneys from across the state and nation.

Bell Island, an excellent criminal defense lawyer from Scottsbluff, NE, described learning a lot about defending DUI cases after joining the NCDD (I know, there are a lot of similar acronyms!) which stands for the National College of DUI Defense. I first heard of the college after attending a seminar that Troy McKinney conducted a few years ago. Since then, I've intended to join but haven't yet. Bell, as well as five or six other Nebraska attorneys, joined the College after hearing Troy's presentation, which was fortunate as just a few years ago there were no members from Nebraska.

Bell told me how much he learned from the college, but it was a story he told that brought this home. He described being in trial, cross examining the State's expert on the Datamaster breath testing device. During the cross, the expert, in front of the jury, blurted out a statement criminal defense lawyers aim for but rarely hear. He said:

"I don't know. You know that machine better than I do."

Guess who the jury listened to? They listened to the expert, who told them to listen to Bell, who later heard two other words: "Not Guilty."

Troy McKinney's presentation a few years ago made me want to join the NCDD, but Bell's story made me finally write out the check. Hopefully I'll know that machine better than their experts in the future.

When you look for a DUI lawyer, ask yourself if they know the machine this well. If they do, you're in good hands.

Switching Hats

2008-09-18T21:57:00.000-05:00

Today I appeared in court in a new role for me: Guardian Ad Litem for a "Child" in a child neglect case. A child in Nebraska is a person under 18 and this case involves two teenagers. I won't go into a lot of details as it's both on-going and personal for the family involved. Like most of my cases, it's meth-related but I look at it differently as I'm wearing a "different hat."

When the attorney for the father turned in court and asked the kids whether they were afraid of their father, I didn't object because I knew both what they would say and what I would say later. What would you have said if you hadn't seen your dad in a couple months, had been pulled from your home and were now living in a relative foster care placement?

They said what I would have said, what almost all of us would have said: "No, I'm not afraid."

But there are plenty of reasons to be skeptical of this, none of which I list have anything to do with this particular case but with all meth related cases in general. One reason is that even if you combine a reasonable person with a lack of sleep for a few days, they quickly devolve into unpredictability. Another is that it's easy to fake sobriety when there are no "UA's" to verify that a person is staying "clean." A third is that, at least in my experience, even a few weeks away from meth doesn't eliminate the "tweaking" behavior and irrational decision making that tend to accompany an active user.

Just yesterday a client of mine graduated from Adult Felony Drug Court, earning a dismissal of his felony charges. A month or so ago, a former hard-core user client of mine graduated, along with his wife, successfully from a Juvenile Court Drug Court Program for parents.

I got a chance to speak and I told a story. It wasn't very uplifting but I thought it was appropriate. I told how I got a call from my favorite client, who successfully broke away from heroine, whose appearance changed so much it would bring tears to the eyes of people who saw how great she looked after looking so close to death as she came to court. I told about meeting this client at the jail and watching her collapse on the floor there, of her then falling on the floor of the "arraignment courtroom" a few days later, screaming out the name of the last person who could help her, her public defender.

And then I told about getting a call from her a few years later and her wanting to say thank you. It wasn't the content of the call that got me down, it was the background noise that made the thank you not be very welcome. You know the sound. The universal jail background noise.

So my story wasn't to uplift but to remind these people, who were graduating after less than a year of being clean and sober, that they weren't out of the woods yet. I almost invoked a story from "Deep Survival" in which Laurence Gonzales describes telling people who were setting out to climb mountains that their goal wasn't to reach the summit but to reach the car again. This would remind them that the work wasn't done once you started back down as most accidents seemed to happen not when your guard and senses were up but when you let them down, thinking your work was over and your goal achieved.

It didn't go over very well, but I didn't care. I was sick of seeing "frequent flyers" come back to see me on new charges shortly after their other case ended. I was a little disheartened that after having about 30 trial on termination of parental rights cases and losing about 29, the one client whose case I "won" or who rather cleaned herself up enough that the judge was convinced she deserved another chance, ended up, a few years later being my first case involving possession of meth with intent to distribute.

As depressing as that story is, it's not over as she just entered inpatient treatment and will, if everything goes well, enter Adult Felony Drug Court in a month or so. Maybe this will her "bottom." This time if it isn't, she'll go to prison. But if it is, her first felony will later be dismissed.

So I enjoyed my new role as Guardian Ad Litem. I've heard so much b.s. over the years from active addicts that I just consider if symptomatic and ignore it, believing my eyes and not my ears.

I'm grateful for this past experience, however, because it helps me in this role. I know that asking the kids if they were afraid of their actively-using dad right in front of him and the judge may have convinced the father that his kids have forgiven him but it didn't convince me of anything. It's what Seinfeld would call a "must lie situation": only the most scared or most manipulative teenager would have said "yes."

It's interesting though, to wear a different hat, to have to think of what's in the best interests of two teenagers who are mature enough to take care of things like feeding and cleaning up after themselves but who really need their parents to be both sober and there for them in their teenage years.

I spoke to a judge once who described requiring parties in Juvenile Neglect cases to "switch hats" periodically. He said it was good for them to think of the cases differently, to walk in the shoes of a different party once in awhile.

Great idea as I do see things differently, wearing this hat and having to look out for these kids.

Now That's A Sports Fan!

2008-09-12T09:18:00.000-05:00

Tony Romo needed 13 stitches in his chin after the Cowboys 28-10 win over Cleveland last Sunday. Then, on his way home to Dallas:

A couple says Romo helped them patch a flat tire on the side of a busy street last weekend after the Dallas Cowboys star returned home from a season-opening win at Cleveland.

Bill and Sharon White told the Fort Worth Star-Telegram that at least 100 drivers ignored their broken-down Mercury before someone stopped late Sunday. Sharon White said a well-dressed man "with something strange on his chin" walked up and offered a hand.

Sharon White said she asked twice before Romo told her who he was and then "screamed real loud, and then jumped up and hugged him."

But the husband had a different reaction as he told Romo:

"Don't tell me how you guys did," he said he told Romo. "I'm going home to watch it."

The "Reality Based Community"

2008-09-07T11:52:00.000-05:00

What scares me about Sarah Palin is her willingness to lie and the media’s attention to “how she did” as opposed to “what she said” and whether it was true. Reminds me of a former Texas governor who was portrayed as “someone you’d like to have a beer with” and who ended up pissing all over the Constitution the next morning. Forget Hockey moms, the only difference between Palin and Bush is lipstick and that's likely what attracted Dick and Karl to her!

There is a difference between Palin’s words and the truth, however. Consider what she said about the “Bridge to Nowhere.” She claimed to have said “thanks but no thanks” to the money but the NYTimes reported in Nov. ’05 that “ House and Senate negotiators... eliminat[ed] a requirement that $442 million be spent to build the two bridges... [and it] will be turned over to the state with no strings attached.”

Notice the date: Nov. 2005. She wasn’t elected Governor until one year later, in Nov. 2006! She didn’t say no to anything but just did what Congress told her to do: spend the money on something else. Congress said “no thanks” to the remote bridge. She said “thanks” to the cash and “no” to the truth.

So what scares me isn’t Sarah Palin so much her as the people who picked her and who write the lies she delivers, and the fact that the press isn’t pressing anymore. As Twain said, “a lie is halfway around the world before the truth gets its boots on.” With the election so close, it better hurry.

Consider how well these people use propaganda and how bad the press is at cutting through it: Just two years ago a Harris poll showed that 64% of Americans still thought Saddam Hussein had “strong” links to Al Qaeda. WTF?

I agree that Obama has momentum, and that’s something to be encouraged about and fight for. But let’s not misunderestimate these Machiavellian Mayberrys.

That’s why they play the games, I guess.

With that in mind. I was reminded of the quote below that Ron Suskind reported in the New York Times magazine back in 2004:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.'

'

Doesn't this quote tell us not only about Bush's "faith based" Presidency but also about Sarah Palin's Vice and possible presidency? She, or whoever wrote the speech she delivered, could have honestly pointed out that she didn't actually sell the former Governor's jet on ebay or that she wasn't in office when the "Bridge to Nowhere" funds were given to the state, but it's better for them to "create their own reality" by allowing this half-truth to continue its bullshit-fueled journey. "Truthiness" is what Stephen Colbert calls it.

It's not "lying"see; it's "creating their own reality." And it's pretty terrifying actually, with a "shock and awe" quality. It's like they're carrying out a disinformation campaign not in enemy territory but in their own country. Or maybe, seeing themselves as "history's actors" and "us" as the sheep who are left to study what they do, they see voters as livestock to be tended but not respected.

Laws and morality are for suckers who haven't figured out how to obtain immunity, who still believe in "quaint" laws like the Geneva Conventions and, in doing so, show that they're not "history's actors."

I'm excited about Obama's rise but don't know what we'll do if their tactics work this time. The stakes are very high and the empire knows how to strike back. Just look at the way they dress a wolf up in sheep's clothing.

The Bread of Heaven

2008-09-04T09:10:00.000-05:00

Last weekend I drove back to my hometown and met up with some old friends. I hadn’t seen these guys for near decades, and thought how sad it was that we only get together for weddings and funerals anymore, most of us with kids and other responsibilities that keep us close to home.

The last time we got together was for a wedding, but this time it was for a funeral, my friend John’s dad Jack. Jack was 80, was a veteran of the Korean “Conflict” and a person I remember well from the afternoon he spent helping me fix my car, a 240Z, during college. Nothing like working on cars for men to bond, except I still don’t do much more than change oil and hand the guy who knows what he’s doing the right tools, which are occasionally beers.

It was great to see my old friends but also a bit scary to realize how quickly the last fifteen years have gone. Although Jack was exactly twice as old as me, 80, the forty-year difference seemed, well, not quite as long as it did when I used to hang out with these guys in college a couple decades ago.

But as scary as it is to realize how fast the years go, it’s also a good reminder of how important it is to live “in the moment” and enjoy now rather than fearing later.

So with my mortality in mind and my good, old friends around me, I went to the funeral, an early morning mass in the Catholic Church my wife spent every Sunday in after being adopted through Catholic Social Services.

I didn’t attend church much growing up, my family being a little like the one Jim Harrison described in the first lines of “A River Runs Through It,” which said “in my family there was no clear line between religion and fly fishing.” When I read that, I wasn’t drawn to the story, but felt like I was finally reading about a family who took nature as seriously as we did. (That’s what probably what led to my family’s first write up in the New York Times as my brother worked his love of hunting and fishing into a job at Cabela’s)

So most Sundays I spent outside while my friends were inside, in church. I went a few times, to different churches, but never really learned the proper etiquette, which will be obvious here in a minute.

When the priest offered to allow “all Christians” to come forward for communion (at least I think that’s what he said!) I decided to step up, it having been years since my last one. It seemed like a great idea until I looked into the young priest’s eyes and heard him say, “The Body of Christ.” I froze, not knowing what to say, but finally, as if from on high, the right words came to me, from somewhere back in my diverse but sparse church experience. When I said the right phrase, I didn’t even stick around to see the priest’s (congratulatory?) response, but just moved along, proudly thinking that I “nailed it.”

When I got home and told my wife this story, describing the funeral, I told her how I slurred the phrase, wanting to move away from the awkward pause my bad memory created. She, of course, remembering that the last time I took communion in the Catholic Church I said “thanks” when the priest handed me the wafer, she pressed me for details, asking me to back up and describe the phrase I slurred to the priest before moving, pridefully, along.

“The phrase you’re supposed to say,” I said, “You know, ‘the Bread of Heaven.’”

I never finished my story about how sad the funeral was as she stopped me, nearly wetting her pants, laughing hysterically. Before long, she’d called almost all her Catholic friends, like some kind of perverted church phone chain, and each thought my phrase (that I still stand behind!) was not only incorrect but somehow hysterical.

Then, later, they laughed even harder for some reason I’ll never understand. When she asked me what I would have said if I’d made it to the “wine line” ( I just went back and sat down) if the priest had said to me, “The Blood of Christ,” I thought about it for awhile. Finally, after deep thought, the right phrase came to me again. I said, “Well, I’d probably have just finished the sentence.”

“How would you have finished the sentence,” she said, smirking, as if I was about to admit to some other supposed “gaffe.”

“You know,” I said, an air of self-satisfaction creeping across my face, as if I was about to destroy the witness on brutal cross examination.

“Shed for you,” I said, walking away triumphantly.

But, for some reason, they all seem to think this is funny too. Just goes to show you the type of people I have to deal with on a daily basis.

So I guess if I get a chance to go fishing this weekend, there’s only one correct response:

“Amen.”

The Horse You Rode In On

2008-08-27T15:30:00.000-05:00

I’ve written before about Laurence Gonzales’ Deep Survival, his book about “Who Lives, Who Dies, and Why.” Reading it recently, I was reminded of an analogy Gerry Spence frequently uses in describing lawyers and what he tries to teach at Trial Lawyer’s College in DuBois, Wyoming. From the Publisher’s Weekly review of his book “Win Your Case:”

Spence's cowboy Uncle Slim once said, "You can't get nowhere with a thousand-dollar saddle on a ten-dollar horse." Noted trial lawyer Spence ( How to Argue and Win Every Time) applies this principle to anyone making a case, whether to a jury, a customer or a boss. Tricks and techniques are the high-priced saddle, he says; more important is the person making the case. Thus his method focuses on "the power of being genuine."

So the idea that “tricks and techniques are the high priced saddle” and that we should focus more on the horse- on ourselves as lawyers- is one that is taught at TLC and at seminars across the country: The jury won’t buy into your and will in fact see right through your “tricks and techniques.” But if you’re genuine, if you work on the “horse” and work on really caring about your client and do so in a genuine way, you’ll carry your client more successfully is the teaching.

Gonzales book on survival contains a similar horse example but he equates the “jockey” on the horse to reason and the “horse” to emotion. As humans, we’re the combination of these two forces. Guess who’s in charge?

The human organism, then, is like a jockey on a thoroughbred in the gate. He’s a small man and it’s a big horse, and if it decides to get excited in that small metal cage, the jockey is going to get mangled, possibly killed. So he takes great care to be gentle. The jockey is reason and the horse is emotion, a complex of systems breed over eons of evolution and shaped by experience, which exist for your survival. They are so powerful, they can make you do things you’d never think to do, and they can allow you to do things you’d never believe yourself capable of doing. The jockey can’t win without the horse, and the horse can’t race alone. In the gate, they are two and it’s dangerous. but when they run, they are one, and it’s positively godly.

They both are, or at least should be. Lack of survival (becoming dead) happens, in Gonzales’ view, when the “horse” of emotion takes over for the jockey completely, which is a typical reaction when we’re confronted with our own imminent deaths.

He describes search and rescue teams recovering scuba diving accident victims drowned with full oxygen tanks on their backs. The reason? When panic sets in, an instinct to remove all things from the mouth kicks in, and these panicked, “horse” (pure emotion)-driven victims pull their own breathing apparatuses out, controlled completely by emotion as they pull out their sources of survival and suck in huge breaths of water.

It’s easy to know what to do when you’re above the surface, however. The trick, the survival technique, is to not let the “horse” run wild. Easier said than done but still essential.

I wonder, however, if the analogy of the horse and jockey, of emotion and reason, helps us as lawyers as well. Our training tells us, and the courtroom procedures are built on the belief that, people arrive at decisions using only their intellect. Consider the judge instructing the jury to “disregard” certain testimony, as if their intellect could simply erase that factor from their purely rational analysis. Isn’t that indicative of a system that pretends the “jockey” is alone, that the “horse” is simply ignored by rational people? Isn’t that naive, however, to believe that emotion won’t play a part or that the jury will simply disregard the witnesses’ mention of something that wasn’t supposed to come up?

Don’t we, as people, arrive at decisions on the horse of emotion and then justify our arrival as if we got there rationally? Don’t we get there on the horse and then, once we’re there, pretend our emotions weren’t the driving force?

Are you following rule #1?

2008-08-25T21:39:00.000-05:00

When I talked to the Exec. Director of the Nebraska Criminal Defense Attorneys Association last week and described how I recently passed the one year mark on starting my own practice, she told me a story.

When a new lawyer couldn't find a job out of law school and started his own practice, he came to court with his first criminal client. After the arraignment, the crusty old judge glared down at the young lawyer and asked, "Did you remember to comply with Rule Number One?" The lawyer stumbled over his words, wondering whether the judge was referring to the Local Rule he hadn't bothered to read and fearful that he'd look bad in front of his first client, like he didn't even know even the first rule.

"Umm, I'm not sure I know which rule you're referring to, your honor," he mumbled, shuffling through the papers as if he might find it there.

"Rule Number One, son," the judge said, "The one rule that all attorneys need to know to be successful in the practice of law; you don't know that rule?" The courtroom fell silent.

"No, your honor. I'm sorry. I guess I not aware of that particular rule, but I'll review it and comply with it the next time I'm before you," said the new lawyer, wondering where he'd even begin to look for this rule.

"You won't find that rule in any book," boomed the judge, obviously intent on teaching the new lawyer a lesson he'd never forget in front of the entire courtroom who looked on, wondering, as he did, what the rule meant.

"Rule number one," whispered the judge, "is to get paid first, before you come to court."

I heard some version of this rule many times, but still haven't complied with it very well. I have at least learned something over this year, albeit the hard way, however, and find it a lot easier to say no now than when I first started out, remembering all the time I spend dealing with people whose checks are in the mail, who are getting paid next week, or whose relative will bring me a check on the first of the month.

I'm still kind of a sucker for a sob story, but I'm trying to follow the rule.

Stumbling on Homelessness

2008-08-20T20:29:00.000-05:00

Several years ago I represented a really bad drunk. When I met with him at the jail to discuss how and why he came to be charged with both indecent exposure and disorderly conduct in an event that took place right outside a library I used to stop at frequently, I couldn’t wait to hear the story.

I’ve forgotten his name, but he was a pretty decent guy with a terrible drinking problem; a “low bottom drunk” who was way down and still sliding fast. He described wanting a bottle of vodka and of “raising” the money in about an hour.

“Oh, it’s easy,” he said, as if describing a cooking technique. “You just find a busy street, make up a sign and in a couple hours, you got enough for a bottle.” He described how quickly people will give you a buck or two and how it doesn’t take many people like that to gather enough for what you need.

I thought of the times I’d been one of the people handing out a buck and felt like a sucker for thinking that I bought a meal for a hungry man. Turns out that, at least for this guy, the funds went for liquid rather than solid food, fed an addiction rather than an appetite.

I had to laugh, both at myself for my naivete and at him for discovering such a humiliating but efficient means to what made him, well, drunk, and which, at least for now, made him feel happy. Not exactly what Jefferson had in mind in including the “Pursuit of Happiness” in the Constitution, but he caught a temporary happy feeling nonetheless.

But, as you might have guessed from his current location, this time he consumed a little to much happiness and ended up pursued by the cops who pulled up his pants before taking him to the “correctional center.”

It’s a long story, but to make it short, the bottle made him feel playful and the light snow on the ground made for the perfect plaything. When he got in a snowball fight with the kids walking home from school, he was too drunk to play very well. Tragically, during the skirmish, perhaps during a particularly strenuous throw, his pants somehow cascaded down, eventually reaching his ankles and giving rise to the charge of indecent exposure, adding insult to injury.

Needless to say, the kids clearly won the snowball fight but suffered the agony of defeat anyway, witnessing a homeless man’s unwashed ass rolling around in the snow outside the Omaha Public Library in broad daylight, burning on their retinas an image that’ll take years of therapy to dislodge. Nancy Grace, if she reads this, has already hit the speed dial to the Center for Missing and Exploited Children. The Humanity...

Mark was very concerned, surprisingly, about getting the indecent exposure charges dismissed, telling me that, if I checked with the police, they’d confirm his story that he hadn’t intended to show anything to the schoolchildren except a little innocent fun. It just turned out that way when the lethal combination of snowball fight, vodka and beltlessness combined in the perfect storm of humiliating coincidence.

When I wondered out loud why he was so adamant about this charge being dropped, his response surprised me. He had kids about these kids’ age who went to school in Omaha and he didn’t want them to see their father’s name or to have their name associated with such an embarrassing crime. I wanted to say, “Well, how do you think they feel about you not being to keep your pants up out in front of the library?” but I kept my mouth shut.

As he predicted, I had no trouble convincing the prosecution to dismiss the indecent exposure charge and he was out in a few days, convicted of disorderly conduct and given “time served” by a judge who, like me, viewed him as more pathetic than pathological.

But what stuck with me, beyond this case, was his description of the way he used people’s generosity and wish to feed people to feed his alcohol addiction. He sort of stumbled onto the “perfect crime” for a hardcore drunk, panhandling for food and playing on people’s altruistic sense to feed what kept him out on the streets, his need to feed his own addictive, destructive behavior.

I hope he eventually got off the streets. I’m not in the “program” but I’ve seen enough of it to be in awe of those who are truly touched by it. I once picked up the “big book” and read about a time when Bill W. had to give Dr. Bob a few beers to calm his D.T.’s so that he could perform a scheduled surgery, after he’d fallen off the wagon at an AMA convention. From AA to AMA and then back to AA, for some beers before surgery? Cunning, baffling, powerful addiction indeed.

But I’ve rarely, probably never, given money to anonymous homeless people since that day, fearful that, like him, the beggars will use it to fill their bellies with booze instead of beans.

Yesterday I wrote about Daniel Gilbert and his book Stumbling on Happiness. While reading his blog, I found not only a reminder of this former client, but an explanation for the lesson I learned and still apply to this day.

It was 1997, and the man who was crouched on the sidewalk at 68th and Broadway in New York City was one of the most pathetic souls I’d ever seen. His limbs were twisted in what appeared to be arthritic agony and tears were streaming down his face. “Please,” he whimpered. “Please, somebody help me.”
Most passers-by did what they were named for, but my wife and I stopped. The man looked up. “Please,” he sobbed. “I just want to go home.” My hand needed no guidance from my brain as it reached into my wallet and extracted $10. “Thank you,” he said as I handed him the money. “Thank you so much.” My wife and I mumbled some embarrassed words and walked on.

We hadn’t gone a block when she tugged my sleeve. “Maybe we should have gotten him into a cab,” she said. “He could barely stand up. He might need help. We should go back to see.” My wife is the patron saint of lost kittens and there is no arguing, so we went back to see. And what we saw was our horribly crippled friend walking briskly and happily up 68th Street, opening the door to a late-model car, getting in and driving away after what was apparently a short day of theatrical work.
I know two things now that I didn’t know then.
First, I now know that my hand did what human hands were designed to do. Research suggests that we are hard-wired with a strong and intuitive moral impulse —- an urge to help others that is every bit as basic as the selfish urges that get all the press. Infants as young as 18 months will spontaneously comfort those who appear distressed and help those who are having difficulty retrieving or balancing objects. Chimpanzees will do the same, though not so reliably, which has led scientists to speculate about the precise point in our evolutionary history at which we became the “hypercooperative” species that out-nices the rest.
The second thing I know now that I didn’t know then is that this was the most damaging crime I had ever experienced. Like most residents of large cities, I’d been a victim before —- of burglary once, of vandalism several times. But this was different. The burglars and vandals had taken advantage of my forgetfulness (“Why didn’t I double lock the door?”) and taught me to be better.

But the actor on 68th Street had taken advantage of my helpfulness and taught me to be worse. The hand that had automatically reached for my wallet had been slapped, and once slapped was twice shy. I’ve never again given money to a stranger without scrutinizing him for the signs that distinguish suffering from its imitation. And because I don’t know what those signs are, I typically just walk by

.

Me too, and that’s sad, as some of those people are probably truly hungry. But, like Gilbert’s hand, I was once bitten, twice shy, learning never to trust sad eyes again, thinking that what they were really after was the thing that kept them out there and that they needed to get away from.

The REAL Secret to Winning

2008-08-18T22:05:00.000-05:00

A lot of people weighed in about the secret to winning, which was raised by Gerry Spence (who wrote about it here and here) and forwarded by Gideon of A Public Defender. I added my own thoughts here, but thought of something else, after thinking back on a book I read last year, Daniel Gilbert’s Stumbling on Happiness.

The blog on the book summarizes it:

Most of us spend our lives steering ourselves toward the best of all possible futures, only to find that tomorrow rarely turns out as we had presumed. Why? As Harvard psychologist Daniel Gilbert explains, when people try to imagine what the future will hold, they make some basic and consistent mistakes. Just as memory plays tricks on us when we try to look backward in time, so does imagination play tricks when we try to look forward.

But what does the quest for happiness have to do with the secret to winning? Well, we all imagine ourselves holding the secret to winning, whether we’ve won as many jury trials as Gerry Spence or, um, me.

But what’s the simple secret that no one else has touched on yet?

Let’s go back to Gilbert’s book. Wikipedia summarizes its thesis like this:

Gilbert's central thesis is that people imagine the future poorly, in particular what will make them happy. He argues that imagination fails in three ways:[1]
1. Imagination tends to add and remove details, but people do not realize that key details may be fabricated or missing from the imagined scenario.
2. Imagined futures (and pasts) are more like the present than they actually will be (or were).
3. Imagination fails to realize that things will feel differently once they actually happen -- most notably, the psychological immune system will make bad things feel not so bad as they are imagined to feel.

The advice Gilbert offers is to use other people's experiences to predict the future, instead of imagining it. It is surprising how similar people are in much of their experiences, he says. He does not expect too many people to heed this advice, as our culture, accompanied by various thinking tendencies, is against this method of decision making.

Did you catch that? Gilbert believes that we should use other people’s experiences to predict the future, concentrating on what we have in common and admitting that our experiences are likely going to mirror theirs in significantly. But he also believes that most of us won’t heed this advice as our culture “is against this method of decision making.”
So what’s the secret to winning? Stop imagining how great you’ll be one day and start talking to people who have been down the path you’re taking. Talk to people who’ve been there rather than imagining how great you’ll be once you get up to the plate.

It’s the secret to both happiness and winning.

It’s what Gerry Spence has put together at TLC and at seminars across the country. It’s what they teach at NCDC and what Terry and Terry MacCarthy will talk about next month at the NCDAA seminar in Omaha.

And it’s what we can do as criminal defense lawyers and blawgers, by sharing what’s worked for us and what we learned the hard way, but learned from nonetheless. Some of us hold the secrets but all of us need them if we are to truly win. The secret to winning as criminal defense lawyers is talking and sharing.

Got any good ideas?

Shameless Plea for Clean Water in Africa

2008-08-14T22:07:00.000-05:00

When I look out of the Douglas County Courthouse front doors, I see the doors Warren Schmidt [a.k.a. Jack Nicholson’s character in About Schmidt] walked out of the day he retired.

Remember how he later connected with an African orphan he “met” after contributing to a “Save the Children”-style infomercial, later writing to the boy:

“Well Ndugu, I'll close now. You probably can't wait to run and cash this check and get yourself something to eat.”

Later, looking back on his life, Mr. Schmidt, the retired Omaha insurance executive wonders:

I know we're all pretty small in the big scheme of things, and I suppose the most you can hope for is to make some kind of difference, but what kind of difference have I made? What in the world is better because of me?

Reminds me of Gerry Spence’s question, asked in Win Your Case, about whether the appropriate response to our lives, at their very end will be “so what?” In other words, what did we stand for, what’s better because of us?

What I love about that scene in “About Schmidt” is that it shows how a middle-aged insurance executive from Omaha can connect with a young boy from Kenya, so much that it moves him to tears, despite his naive belief that somehow the check will arrive and Ndugu will rush off to the bank (a prominent image from Warren’s world as the First National Tower has recently surpassed Warren’s former building as the highest landmark on Omaha’s skyline) to “get something to eat.”

While the movie is obviously a critique of Warren, I love the way it doesn’t melodramatize him. Despite his faults and misconceptions about what life is like for a young boy in Africa, he still feels a human connection to this soul a few thousand miles, several generations and lots of dollars away from him.

That is the most touching scene in the movie to me and the most hopeful. It’s not too late for this man to make something in the world “better because of” himself. , He’s just not sure how to go about making it happen, so sending a check to Save the Children and believing that when it arrives it fills both the belly and heart of a young kid is what he does and believes in.

But does the check “make some kind of difference” or “make something in the world better because of me” as Warren wonders?

I don’t know and am sure it depends on the organization. I have my doubts which are based not on fact but on images and stories, like the scene I see every day when I walk across the United Way parking lot and pass an ironic sign that says “UWM Employee Parking Only” planted directly in front of a Saab convertible.

A couple weeks ago, my uncle and his wife stopped by the house. He’s an uncle I haven’t known very well as his job with Boeing and base in Seattle meant he didn’t get back to Nebraska often. But talking to him is like talking to a long-lost brother, or, um, uncle. I don’t know him very well but can tell that despite our years apart, we’re very much alike.

He and his wife, Joanruth, soon told us about a project they’re raising money for in Kenya. They described their excitement about being able to save lives, literally, by raising money for a clean water supply in a village called Kunya.

When I told them that I’m hesitant to give to charities because of the Saab convertible I walk by every day, parked in the United Way parking lot, they laughed and said that they learned, during their stay in Africa, that the joke among the people was that the “aid” organizations drove around in Land Rovers and the money appeared to go more for wheels than water. I wondered how many kids or how many gallons of clean drinking water the optional leather upholstery would have provided.

And they told of finding a calling after retirement, the kind Warren Schmidt likely longs for, because, as Joanruth put it, “where can you see your efforts actually save real people’s lives.” As it states on their website:

"It's only by the luck of the draw that we were born in the U.S. and that our friends in Kunya were born to the deprivations they face.

We feel extraordinarily lucky in our lives and want to make a difference to those who are not. There are a lot of needs [dying starfish?] in the world, and we can't solve them all---but we can solve this one and make a life-saving difference for thousands of people.

We lived and worked in Kenya for three months in 2007, and from that experience came the Friends of Kunya."

This struck a chord with me because it’s what made me stay at the Public Defender’s Office for so long. I realized that it was only “by the luck of the draw” that I wasn’t born into the lives of my clients. I loved it because I felt like I could make an amazing difference for someone if I simply cared and tried. Granted, people didn’t change very often but when they did I occasionally got to feel like the little boy in the starfish story who says, “I made a big difference for that one.” Have you heard this story, first told by Loren Eisely in which he:

... was walking along the ocean ... one morning.... after a storm had subsided and ... he noticed that thousands of starfish had been washed up on the beach. [He then saw] a little boy, gazing fixedly at an object in the sand. Eventually, he flung the object far beyond the breaking surf.

Eiseley went up to him and asked, "Son, what are you doing?" The little boy answered, "I'm throwing starfish back into the sea because if I don't they're going to die."

[Eisley said,] "But there are thousands of starfish. In the larger scheme of things you're not going to make much of a difference to all these starfish."

The little boy looked up at him, stooped down again to pick up another starfish and, gently but quickly, flung it back into the ocean. "It's going to make a big difference to that one."

My Uncle Dick and his wife Joanruth then told me about living in Kenya for three months with no running water, showing me pictures of “drinking water” the color of toxic waste and of how they learned that what they thought they truly needed, such as electricity or a working toilet, they really didn’t. They described this as something nice to come home to but also something they learned to appreciate once they lived without it for awhile.

And they showed me a brochure they put together and told me about a website some friends helped them put together. They told me how, unlike other organizations, in which administrative costs soon begin to siphon off funds (and buy Landrovers?) their organization sends each penny it gets directly to Kenyans with all the administrative costs provided by volunteers like themselves.

I also liked what they told me about their affiliations with churches. They described how, understandably, people who find out they spent three months in Africa believe that they “must have been on a church mission.”

But they weren’t.

Their organization is not affiliated with a church and neither was their stay in the village. I appreciated this because it shows me that their aren’t “strings attached” to the contributions and that no Kenyan child will have to pray before drinking a cup of clean water, unless he or she wants to.

Don’t get me wrong. I’m not saying that prayer is bad or that churches don’t do amazing work. I just think that, just as our founders believed a great nation was built on the separation of church and state, a great giving organization is built on the separation of aid and belief.

I know this post doesn’t fit into a law-related blawg very well. I just know that, just as my uncle and his wife heard a calling and later found a cause, perhaps there are people out there who want to help.

I wish I could go there and work, or write a huge check, but I can’t. I’ll give what I can, but thought that the least I could do was to tell this story and spread the word.

Perhaps there’s someone out there feeling, as Warren Schmidt did, “pretty small in the big scheme of things” and wanting to act on his or her wish that “the most you can hope for is to make some kind of difference.”

Maybe there’s someone who’s sick of seeing Saabs in United Way parking lots and able to give but as yet unwilling, suspicious, as I often am, about where the gift will land and who it will truly help.

Trust me; my uncle and his wife have labored in the place they’re now trying to assist. If you want to email me to talk with them directly, they’re the kind of people who would gladly call you up and answer questions about where the money will go, no matter whether you drive a Saab or a Schwinn.

They lived with the people they’re now trying to help and they’re making a real difference, ensuring that despite all the “starfish” dying on the beaches of this world that they “made a real difference for that one” village in Kenya where the water runs green instead of clear.

(If you want to give and have questions, email me at “nelawyer at cox dot net” and I will contact my uncle to find the answer)

The Secret to Winning

2008-08-12T23:27:00.000-05:00

What’s the secret to winning? Gerry Spence wrote a post on the subject, which prompted Gideon at A Public Defender to start a game of tag to gather other opinions. Scott Greenfield tagged me, so here goes... Since, unlike Gerry Spence, I can’t dazzle you with my own record, I’ll turn to what has stuck with me from places like NCDC, TLC, and even UNK.

Don Fiedler, who passed away recently, is a hero to me and remains a legend at NCDC where he taught for decades. When I think of winning and the secret behind it, I think of Don standing before us, telling a story about the composer Leonard Bernstein. Don doesn’t just tell the story, he acts it out, taking on the characters, showing us the scene in which the maestro is asked and then answers questions, not about winning, but about what his favorite moment is as a composer.

Don first acts out an observer asking Bernstein, “Is it the end of a great performance, Maestro?”... “No,” says the accented, thoughtful composer, after first pausing to consider it.

“Is it the moment you take the stage and first wield the baton, sir?”... “No,” he says again, after first looking into space, pausing to consider it.

“What is it then, Maestro? Will you please tell us your finest moment as an artist?”

“I’d have to say,” says Don as Bernstein, “it’s that moment, when I’m in my study, and the notes fall perfectly into place, that moment when I hear, for the very first time, what I’ve been looking for, the perfect ‘ba, ba, ba, boom.” Once I discover those perfect notes, the rest of the music flows.”

Don goes on to tell us that we have to look for something similar to win our cases, the perfect theme that summarizes our client’s story, upon which our cases are built. . The way Don commits himself to telling this story makes us want to not only win, but to be as playful and heartfelt along the way as the old man standing before us who clearly loves being a criminal defense lawyer almost as much as being able to show us what he’s learned along the way.

We hear that the moment we are to strive for doesn’t come in the courtroom spontaneously. It comes through hard work, in our “studies” where we both work and play, working like artists examining real life rather than as scientists carving up a cadaver. It’s not enough to have talent, we learn; we must combine talent, work and even luck, until the muse visits us and gives us that perfect string of notes, that theme, that builds our case, uncovers our client’s stories, and gets us to “not guilty.”

I really didn’t do justice to the way Don told this story, but it was magical. Because of the commitment of the storyteller, I’ll never forget the story. Because I can’t forget the story, it’s lesson remains as well:

Work hard, behind the scenes, until the performance on the stage looks effortless and perfectly summarizes your client’s story for the jury.

Some day soon I’ll describe the rest of this story, how at NCDC and at TLC we learned that the way to get to the “ba, ba, ba, boom” Don Fiedler described was to discover our client’s stories. I don’t mean that we make them up, only that we realize that the police report is nothing more than a story, the one the officer observed and shaped, the one the prosecutor took as truth and the one she’ll tell at trial.

Only when we refuse to be defined by this “story” and discover the real story behind our client’s sometimes rough exteriors will we discover the secret to winning.

I wish I knew how to get there every time, but I haven’t learned that secret yet. Until I get there, I fall back on the words of my poetry teacher, another Don, who described winning the way I’ve experienced it:

I fight to keep the bastards from winning.
The bastards keep winning, and I keep fighting.

Too Important to Be Taken Seriously

2008-08-11T22:01:00.000-05:00

Last week, as I wait outside my wife’s building to pick her up at the end of the day, I roll the windows down and let the beautiful day roll in. I hear people laugh but when I look around, see no one on the sidewalk. After about the third time, I step out of the car and see, high above me, two guys dangling from ropes holding five gallon buckets, washing windows as they slowly drop down the building’s side.

One seems focused on his work, but the other works faster, wiping two windows at a time, squeegee-ing them off and then kicking hard off the side of the building, releasing slack when about five feet off the side, rappelling down to the next level of windows. While he works, he also pauses and yells at his friend, even sings loud, mixing play with work while about halfway down a ten story building.

Seeing me look up, a couple other people do likewise, and we watch the guy laugh and mess around above us, dripping soapy water down when he kicks off and moves down. As I watch him have fun with his work, I wish for a second that it was me up there. Then I remember that he hangs by a thin rope, one slip away from falling as fast as the water he spills. As fun at it looks, it’s a high stakes game he’s playing, without a net.

But he makes it look so fun that the people outside the bank look up with envy, perhaps on their way back to their cubicles.

For me, it reminds me of what I read the night before and thus I’m not surprised that these guys laugh and seem to play while doing something deadly and unforgiving. Here’s what Laurence Gonzales writes about the way humor and play can help us make better decisions when we’re under severe stress:

Emotion is the source of both success and failure at selecting correct action at the crucial moment. To survive, you must develop secondary emotions that function in a strategic balance with reason. One way to promote that balance is humor.

Every pursuit has its own subculture, from hang gliders and steep creek boaters to cavers and mountain bikers. I love their dark and private humor, those ritual moments of homage to the organism, which return us to a protective state of cool. It unequivocally separates the living from the dead....

It sounds cruel, but survivors laugh and play, and even in the most horrible situations- perhaps especially in those situations- they continue to laugh and play. ... There is evidence that laughter can send chemical signals to actively inhibit the firing of nerves in the amygdala, thereby dampening fear.

Before I’d read this, this guy would have seemed crazy to me, but his play now made sense. He wasn’t failing to take his job seriously, he just realized that what he was doing was too important to be taken too seriously. Play not only makes it more fun, it also, ironically, made it more safe.

P.S.: Mark Bennett at Defending People blogged about Gonzales’ book long before I did. (Check out his posts here and here. ) I’m sure I read these posts, but didn’t put the source together until I heard Gonzales interviewed on NPR. Like GTD and Eckhart Tolle, I finally heard about these books so many times that I had to pick them up.

What do you read or do to stay fresh and stress-free?

"Don't Know Why You Gotta Be Angry All the Time"

2008-08-10T13:16:00.000-05:00

Scott Greenfield at Simple Justice found my two posts about Road Rage and recommended them via links. I appreciate that, as I did work hard on these posts, even though I gave the second one a ridiculous title in an attempt to provide a little comic relief to a deep, exhausting subject.

[FYI: “Electric Bugaloo” is the name of a really bad sequel an 80’s movie called Breakdance, which likely makes the joke even less “funny.”]

The nice thing about choosing which stories about yourself get posted on the web is that you get to pick the times you say, “You doin’ o.k?” and to leave out the times you said something that wouldn’t make it past the censors on network t.v. But I’ve been down that road plenty of times too. In fact, I wrote this as a follow up to a comment at my first post on Road Rage:

The truth is if I would have arrived a few seconds later I might have seen it just like the lady did and acted the same way.

I wish I could blame stuff like this on "those people" but I've been one of "them" before too. Wasn't it Pogo who famously said "we have met the enemy and he is us?"

As I said in a previous post, I’ve been reading Eckhart Tolle’s A New Earth and have tried to focus on my own anger more rather than hypocritically using it to condemn other who are acting out of it. In fact, it was a comment I wrote on Greenfield’s blog, that made me want to start taking myself and my own causes less seriously. Sometimes, at least for me, it takes seeing my thoughts in print before I realize how irrational they are. It’s those times I wish I wouldn’t have hit “post,” and would have done the email equivalent of leaving the angry letter on the shelf overnight before dropping it in the mail.

Here’s what I wrote a couple weeks ago at Simple Justice:

he's likely revealing both the way he operated as a Public "Defender" as well as a desire to show his new colleagues that he wasn't placed where he rightfully belonged right out of law school but was simply performing the academic equivalent of a peace corps mission: working alongside the public school lawyers, among the natives, to add that anthropological experience to the cv and have a nice cocktail party opener.

I wrote that because a guy named Dan Filler wrote this line about criminal defense lawyers in a post about the Supreme Court’s recent Heller decision:

“Defense lawyers may have fun with Heller for a while but I suspect that they'll soon discover little to play with, and they'll return to the bread and butter. Dramatic closings; perilous cross-examination; and of course plea bargain after plea bargain after plea bargain.”

I don’t know what set me off so much about that comment, but, as I re-read it, it’s obvious my response is more about me than him. I still don’t agree with his patronizing assessment, and wonder how he operated a a p.d., but I still protested too much in response. In fact, it was Greenfield’s response to my comment that made me reread and reconsider it. He wasn’t being critical, but his phrase “ouch. I could hear that slap all the way in New York” made me reconsider whether my take on Filler’s comment was appropriate or the equivalent of web-based “road rage.”

Since I didn’t even bother to read his whole post before reacting to it, I took it as the latter, which likely got me thinking about the subject. “Angry all the time” is not only a great song by Bruce Robison, it’s also a bad way to live and a worse way to operate as a criminal defense lawyer.

Road Rage 2: "Electric Bugaloo"

2008-08-08T21:51:00.000-05:00

Last year, riding with my wife on the way to pick up my kids after middle school, a mini van pulls behind us. I can tell the driver is upset as she drives close behind me. But she goes further than a typical tailgater, weaving back and forth. When I don’t react, and just keep driving, the speed limit mind you, she starts waving her hands at me. I turn a few times, driving through a neighborhood by the school, and she stays right behind me. When I make the last turn, moving down the driveway in front of the school, she’s still there, still waving her hands at me, acting crazy.

My wife laughs as the lady drives on by as we pull into a spot, parking just a few car lengths ahead of us, in the fire lane where the school buses usually sit. She laughs because she sees that the lady will have to walk up to the school about the same time I will and it’s funny to think that the crazy lady will have to face the people she thought were just some random drivers. Turns out our kids are probably friends, attending the same aftercare program.

As I look at her, I start to think that it’s now my turn to be mad, to teach her that she shouldn’t act so crazy, especially when she drives by the school her own kids attend, along with mine.

I want to yell at her, to embarrass her if that’s what it takes, to teach her a lesson about not driving crazy around my kids. I think about the times when I’ve been this angry, about the time when I demanded of the confused lady on the phone, who mumbled and then finally asked me “who is this?”, that “you called me lady!” only to find out she was the mother of my brother’s best friend, calling to tell us Mark had been killed in a drunk driving accident.

But she looks down ground as she walks in my direction, already looking defeated. When she finally glances up, I avoid the temptation to ask her who the hell she thinks she is and instead hear myself ask her, “you doin’ o.k.?”

“No,” is all she says, almost whining, her body language telling me she’s desperate but not yet ready to talk about it. We walk in together, her walking in front, saying nothing. Once inside, we find ourselves standing together awkwardly, as our kids gather up their things. The effect of the kids on the adults is a little like that of Scout on the mob in To Kill A Mockingbird, when she says, “Tell Walter I said ‘hey.’” Pretty soon we’re not so riled up and, like the mob, just want to go home.

My wife joins us now and, as we stand there together silently, we recognize her kids from past pickups, the tension draining out of our postures as we wait. The lady’s anger seems to have surrendered when placed under the lights. My wife, sensing that things have cooled down, that there’s no need for lessons, gives the lady a look that says, “you may be crazy, but it’s o.k.”

Then the lady looks at us, stressed and embarrassed, and says, “I’m sorry.” “It’s just... there’s been, um, there’s been a.... we lost someone in our family and we really have to get home.” Then she turns to the kids, tells them to hurry, and obviously wants this scene to be over. But my wife won’t let it go so she walks up beside the lady, ignoring her pose that says, “leave me alone now.”

When the lady turns toward her, still silently saying, “I want this to be done,” my wife ignores it and stands there, demanding a hug. When the lady sees this, she gives in, hugs her back hard and the kids look up wondering what could have made these two adults hug for a long time in the middle of a middle school library, crying together.

As I look on, at this surreal scene that began with road rage and ended in embrace, I think of the quote Mr. Rogers carried in his wallet, described in The World According to Mr. Rogers, learning a lesson instead of teaching one to someone else. His favorite quote reads:

“There isn’t anyone you couldn’t love, once you’ve heard their story."

Proximity to Tragedy

2008-08-07T05:47:00.000-05:00

Last week, as I drove home from court in an outlying county, I caught an NPR interview (link to older interview) with Laurence Gonzales, author of Deep Survival: Who Lives, Who Dies, and Why. What first caught my attention was Gonzales’ view of what most often gets men into trouble when their survival depends on them making no false moves. What gets us into trouble? Sadly, Gonzales says, it’s testosterone, inexperience with the outdoors and even testosterone. We often fail to think, when we truly need to, and often assume unnecessary risks that make us, well, dead. He describes, in an earlier article:

Accidents are bound to happen. But they don’t have to happen to you if you recognize your role in a system. Driving bumper to bumper at highway speeds, waiting for someone to tap his brakes and start a chain reaction accident is one example. Having a retirement account heavily invested in the stock market is another. A small move by a few investors can send everyone stampeding for the door. Being aware of such systems and analyzing the forces involved can often reveal that we’re doing something much riskier than it seems.

As I was driving at the time, likely talking on my cell or navigating my ipod for that one special song or podcast, what also caught my attention was Gonzales’ description of how dangerous driving truly is. He also said of driving:

- If it was invented today it would be outlawed tomorrow due to the number of deaths and injuries.
- If we weren’t so used to the risks, we would drive with helmets, thus at least reducing the risk the way we’ve begun to do with bicycles.
- When we invent a safety feature, like anti-lock brakes, we tend to over-rely on its effectiveness, thinking that technological advances allow us to take more risks rather than eliminating existing risks.

At night, I’m sometimes awakened by the sound of revving engines on what I think of as “donor bikes.” My friend, the doctor, told me that’s what the employees in the organ donor departments called them, and the term was hard to forget, as well as the source. He also told me he was surprised to see doctors wearing boots, the high kind farmers wear to irrigate corn, and then found out they were the surgeons who harvested organs and did transplants. Another image that’s difficult to forget.

So, with Gonzales’ descriptions of the risks of driving as a lead-in, and with the subtitle “Who Lives, who Dies and Why” in mind, I ordered the book from the library. Last night I went to pick it up, letting my 12-year old ride in the front seat, despite the air bag risk that usually had me making her sit in the back. We were only going a couple miles and the risk would be worth it, I assumed.

Everything’s fine; we made it home o.k., but, as we waited at a stoplight, I heard, and then saw, two of these “donor bikes” flying down the street that we waited to cross. One burst out ahead and the other came on even faster, trying to catch his friend. This burst of speed made his shirt fly up his back as he crossed our windshield. Then, as he went over the hill, his bike began to shimmy, as if he’d lost control. His friend had slowed in front of him, just as he sped up and, as he steered away, he sat up, off the bike, as it shifted back and forth, violently, on the verge of going down hard.

At first I thought he was having fun, scaring his friend, but he kept it up too long, shaking back and forth too far, just as he went over down the hill and out of my sight. I didn’t think, I just yelled what came to mind, “Oh God, No, he’s going down!” I saw the friend turn and look ahead, where I couldn’t see, seemingly alarmed too. My daughter screamed back at me, asking what I saw, unused to having to look at other cars as we rode. I screamed, “No! No! No!, shocked, thinking that I’d just seen a kid turn from having fun to becoming a road stain in seconds. I thought that down that hill lay a rolled bike, a skinny kid wearing a sleeveless tee and shorts become at least a severe road rash victim on his way to the hospital. Perhaps worse.

But no one else was around. No one had really seen anything, it seemed. As we sat there, in the right hand lane, unable to turn and go down there, screaming back and forth, trying to explain what we thought we’d just seen, the cars came up from behind. I looked at the driver beside me but he’d arrived too late, hadn’t seen anything. I saw cars begin turning in the kid’s direction and wondered what kind of horrors they would see ahead. I wanted people to stop, but they kept going, oblivious and distracted.

I saw several cars going that way and thought that while I should go down there too, I’d likely arrive too late to be any help. (What was I going to do, lecture them on the law? Defend them for reckless driving? Tell them not to incriminate themselves Post-Miranda?!) And I thought of my daughter and not wanting her to see the blood, to have to remember what speed and risk could do to a kid.

So I went straight, not knowing what else to do. I hesitated, though, still shocked at how quickly fun can turn into pain. And then I saw her. The woman in the white corolla right behind me, shaking her hands at my face in the rearview mirror, telling me to get my ass in gear. I pointed to place the kid had gone, thinking somehow that she’d figure out, perhaps from the reactions of the cars going down there, what I’d just seen and why I wasn’t moving fast.

But she screamed even more, her hands flying up at her windshield, yelling at me for holding her up for those few seconds, those few car lengths of time. I went forward a block and turned onto the first side street, to get out of her way and collect my thoughts, to decide whether to go back, describe what I saw, or just take my kid home.

But as I turned, my jaw still open from the likely wreck that cut across the screen of my windshield, the lady in the white corolla pulled beside me. She raise any fingers, but she had a lot of words for my daughter and me, none audible through the layers of glass that held our voices inside.
I just looked at her, stunned, hoping she might see what she just missed, that a guy was likely dying and that we’d witnessed what she narrowly missed.

She drove on and my daughter demanded that we go back, saying she had to see if he was alright, if there was anything we could do. She promised to close her eyes if it was bad and we went back, turning slowly down the street, expecting sirens, people stopped, even blood-stained streets.

She kept her eyes open though and we saw nothing except some moving cars and two bikes going over the next hill slowly. She wondered if they were the same ones, but it had been too long, unless they’d stopped in the meantime.

There were no stopped cars and no wrecked bikes. I guessed the kid had pulled out of his near wreck somehow, or slowed enough that he could get right back on. I wondered if maybe he was just having fun, making it look like he was going down, messing with the people in “cages” (as the real bikers call cars) just messing with his friend and those looking on. But he was just a kid, so I guessed that he’d just been lucky, pulled out of it, perhaps learning a lesson in the near miss.

We drove home in silence and, arriving, couldn’t recreate the scene very well, both finding that our words didn’t do the live event, the shock, justice.

But when we talked later about having fun and balancing risk, she listened hard. When I read the book later, I hoped the lesson had sunk in and that she could understand a little more about “who lives, who dies and why” and get through those years when kids tend to think it won’t ever happen to them.

But the lady in the white corolla will drive on, oblivious and angry, unaware of her proximity to tragedy and of how those few, insignificant seconds she still stewed over were almost the difference between life and death for a kid on a bike and a unforgettable image for those looking on.

The Suicide "Solution"

2008-07-28T12:34:00.001-05:00

Once, back when I was a public defender, a client told me she was close to killing herself. We stayed and called around, finding her a counselor who was very helpful and who agreed to meet with her later that day. I felt lucky because, although there was nothing more important than finding her someone to talk with, who would hopefully talk her out of it, I really didn't know what to do. Like a lot of other things, they didn't teach me how to handle the suicidal client in law school.

Then, during the middle of a trial on termination of parental rights, a different client told me that if her rights were terminated she planned on killing herself. Hearing this, I obviously tried very hard to win, but also took the threat as an indication that her parenting abilities, and addiction issues, still needed some work.

Thankfully, neither of these young women followed through on their threats, but I don't want to ever get complacent about hearing threats like these again, as it's difficult to know what's a cry for help and what's a prediction about what will happen next.

I'm concerned about the coming economic hard times and the effect they'll have on my clients especially. Many of these "indigent" people exist on the edge of disaster anyway, and economic hardships will likely trickle down on them the hardest.

I wonder, as I look back and see how many of my first clients are now dead, how many more will endure further disasters as the economy tumbles.

Along these lines, Barbara Ehrenreich writes in the HuffPo about "The Suicide Solution:"

Suicide is becoming an increasingly popular response to debt. James Scurlock's brilliant documentary, Maxed Out, features the families of two college students who killed themselves after being overwhelmed by credit card debt. "All the people we talked to had considered suicide at least once," Scurlock told a gathering of the National Assocition of Consumer Bankruptcy Attorneys in 2007. According to the Los Angeles Times, lawyers in the audience backed him up, "describing clients who showed up at their offices with cyanide, or threatened, 'If you don't help me, I've got a gun in my car.'..."

Offering a much better solution, she writes later:

The alternative is to value yourself more than any amount of money and turn the guns, metaphorically speaking, [Note the word, "metaphor," Rebecca!] in the other direction. It wasn't God, or some abstract economic climate change, that caused the credit crisis. Actual humans -- often masked as financial institutions -- did that, (and you can find a convenient list of names in Nomi Prins's article in the current issue of Mother Jones.) Most of them, except for a tiny few facing trials, are still high rollers, fattening themselves on the blood and tears of ordinary debtors. I know it's so 1930s, but may I suggest a march on Wall Street?

Falling Back on Old Advice

2008-07-24T21:38:00.000-05:00

When I was in grad school, in Coventry England, I one day became upset at the debate taking place in a class. My undergraduate degree emphasized creative writing and I’d written a fair amount of poetry along the way. These feeble attempts to emulate the great writers gave me an immense respect for their accomplishments, the way even a weekend golfer respects Tiger Woods more than a spectator who’s never lined up a putt and seen it break the other way.

The professor and the students tore up the writer’s work and concluded that it was essentially worthless and this struck me as similar to spectators laughing at the last place golfer. Sure, he didn’t make the cut, but at least he was swinging one type of club instead of sitting in the other. These critics seemed to only talk about art without ever attempting it, ridiculing rather than risking, sitting at a safe distance intellectually critiquing those who tried to write artistically.

So I wrote my poetry teacher back in Nebraska, lamenting the way these critics in this beautiful university subjected “lit to crit” and seemingly dissected the artist currently on the table the way a science class cut into a formaldehyde dipped frog, tearing up the beautiful but imperfect miracle and simply tossing it aside when their own purpose was served.

So I was mad, and homesick, and probably feeling inferior to these better-educated British students. I told my favorite professor how frustrating it was to see these supposed superior scholars who’d likely never written a line of good poetry mock those who at least attempted this, sometimes sacrificing much along the way.

I’m sure my anger was apparent in my letter home, and to a long-term poet like this man, probably the hurt behind the anger as well. I’ll never forget the simple lines the poet wrote back to me:

“Subjecting lit to crit in unreasonable but human.”

Then he told me about what was new with the people we knew and with the Platte River we both love.

That’s “all” he said but it was enough for me to remember all these years in between and to still remain in my mind twenty years later.

Here’s how I took what he said:

You’re in England studying at a great University. Why are you wasting time with anger over what a few flawed human beings are saying about artists?
Why are you missing the beauty around you and the wonderful opportunity you have and being ruled by anger?
Haven’t I taught you that you can “float your sweet silver voice” over those people’s heads if you focus on the perfections of this world rather than on people’s natural temporary imperfections, which you have as well?
He of course didn’t literally say anything like this but simply pushed all my judgment off to the side and refocused me away from those who made me angry toward that which could make me laugh, learn and appreciate the opportunity that a wonderful university and an artist’s eye could give me.

I’m reading Eckhart Tolle’s A New Earth and today read about the author studying in England and one day watching a likely schizophrenic riding the subway who was having an angry conversation with herself. He followed her off the subway as she continued to talk to herself, angrily, and then lost her as she stumbled into his University building, ironically the location of the Mind Police in the film version of Orwell’s 1984.

Once inside, he stopped at the men’s room and, while washing his hands, “thought” to himself “what a strange woman. I’m glad I’m not like her.” Noticing that the man beside him looked in his direction, he realized he’d not only thought this but said it out loud to himself.

This made him realize that not only was he a lot more like her than he realized, with a wandering, anger-based mind, but that his ego was trying to diminish this similarity by focusing his mind on the subtle differences rather than on the striking similarities. He of course, wasn’t labelled “mad,” as the woman likely was, but the only difference was that, at least until that point, his thoughts had been contained in his head while hers were blurted out randomly.

His thoughts were likely just as angry and random as hers but he hadn’t realized it until someone looked suspiciously and judgmentally at him the way he’d looked at her.

As he describes this:

“Oh my god,I’m already like her,” I thought. Wasn’t my mind as incessantly active as hers. There were only minor differences between us. The predominant underlying emotion behind her thinking seemed to be anger. In my case, it was mostly anxiety. She thought out loud. I thought- mostly- in my head. If she was mad, then everyone was mad, including myself. There were differences in degree only.

For a moment, I was able to stand back from my own mind and see it from a deeper perspective.”

That’s what I was able to do when my teacher in effect told me to get over my anger and my overly-critical professors and try to start seeing the world as even a feeble artist does once again, to move from thinking about the world to feeling it again, to let go of anger and experience joy, to laugh in the moment instead of judge from a distance.

I learned a lot in grad school and was very lucky to have that experience. But I’ll never forget the way Don Welch taught me to focus on the beauty and potential before me rather than on the tempting distractions which will always be present. While they can make you angry, they’re also forgiveable, entirely human, and themselves a source of inspiration, if only you learn to look in the right way.

It’s easy to be angry, especially when you’re a lawyer and constantly fighting with someone for someone else. But I’ve found that while the day to day work of being a lawyer can make me angry, when I let it get the best of me I’m at my worst as a lawyer and my most miserable as a person.